Harvard Law Professor Urges University to Fight RIAA

NewYorkCountryLawyer writes "Distinguished Harvard University Law School Professor Charles Nesson has called upon Harvard University to fight back against the RIAA and stand up for its students, writing 'Seeking to outsource its enforcement costs, the RIAA asks universities to point fingers at their students, to filter their Internet access, and to pass along notices of claimed copyright infringement. But these responses distort the University's educational mission. ...[W]e should be assisting our students both by explaining the law and by resisting the subpoenas that the RIAA serves upon us. We should be deploying our clinical legal student training programs to defend our targeted students.'"

Comments

wow

[wellingj]

Finally some one with some integrity speaks on the matter.

Re:wow

[ObsessiveMathsFreak]

Just to emphasise that Nesson is a Professor of law, not a laywer, so we don't have a contridiction in terms here.

Re:wow

[iElucidate]

On the contrary, Nesson had a short yet distinguised legal career prior to joining the HLS faculty.

Re:wow

[Anonymous Coward]

a) He is a lawyer.

b) You suggest that if he were a lawyer, there would be a contridiction [sic] in terms by him being a man of integrity. The implication is that lawyers have no integrity. A person can have or lack integrity in the things they do or in the ways they do them. Since you are presumably not a lawyer, you don't have the background necessary to begin to know the ways in which lawyers do things, the tools at their disposal, and so on. So I'm presuming that you find integrity inherently lacking in the positions they argue. However, even if you found EVERY single lawsuit and prosecution to be frivolous and unjust, in our adversarial system, lawyers (almost always) exist on both sides, so even then you could criticize no more than approximately 50% of lawyers for advocating immoral positions.

Are you really going to say that the people defending IBM against SCO's suit -- and the people helping IBM at Novell -- lack integrity for what they're doing?

Anti-lawyer rhetoric is dangerous. They're the last bulwark against an oppressive government.

http://www.washingtonpost.com/wp-dyn/content/artic le/2005/11/13/AR2005111301061.html

Re:wow

[Fordiman]

Wow. Way to harsh the mellow, dude. Lawyer jokes are as old as the sun; relabeling it as 'anti-lawyer rhetoric' is just retarded.

Re:wow

[Nullav]

Since you are presumably not a lawyer, you don't have the background necessary to begin to know the ways in which lawyers do things, the tools at their disposal, and so on.

Pfft. Maybe he played Phoenix Wright. What do you have to say to that?

Authority

[CriminalNerd]

If this gets out all over the media, people would start fighting back more since a Harvard law professor is advocating resistance, and we all know that Harvard has brand power that is rivaled by only a few other high-grade universities. If Harvard does resist, we can have a new slogan: "Fight the RIAA because Harvard's doing it."

Re:Authority

[Anonymous Coward]

so they do it for all the wrong reasons and they learn nothing from it?

-why did we fight riaa anyways?
-i dunno lol, harvard was doing it

Re:Authority

[Pinkfud]

Yes. We should make damn SURE it gets out. Bravo for one stand-up guy!

Re:Authority

[izzo nizzo]

People get curious, the media is a help and a hindrance, but after a while people do learn. They wouldn't learn nothing just because this was very helpful in getting their attention.

Re:Authority

[viksit]

_If_ Harvard ends up resisting. _IF_ Yale joins in. _IF_ Columbia, which was targeted as one of the 12 piracy-propogating schools decides to join on the bandwagon. Who knows, the ivy league might just end up doing something as a team.

Those are a lot of big ifs, imho.

Re:Authority

[archmedes5]

If they lose this fight, they'll singlehandedly make the "Ivy League" a thing of the past. I'm not siding with the RIAA here, but the law, unfortunately, is on their side. Are these colleges prepared to take the risk of losing everything to stand up for their students?

Re:Authority

[dbIII]

It must be the best - the President went there!

Personally I think he is not as dumb as he looks, likes to play dumb the same way he is playing at being Texan with the new "family ranch" and has had most of his life organised for him by other people. Is there pressure to pass students with influence there or does Harvard have more integrity than that?

Re:Authority

[Joebert]

so they do it for all the wrong reasons and they learn nothing from it?

Not really, they learn why they should have went to Harvard.

Re:Authority

[krotkruton]

First off, thanks for saying Harvard has brand power as being one of the best universities and not that Harvard is one of the best universities.

With that said, you make a really good point in that people tend to listen more to things that appear to be special or great. If one of the lesser known but higher ranked law schools had a professor who said the same thing, this wouldn't have nearly as much of an effect. That's assuming that this actually has an effect, but here's to hoping.

Re:Authority

[kdemetter]

yes , i now , the law is always on the side of big corporations with lots of money . but that doesn't make the law right .

colleges/students stand for the future . if anyone should fight ther RIAA, it's them .

and yes , they should take the risk . it will earn them much more respect than cowardly submitting to the RIAA .

Re:Authority

[Opportunist]

Well, Havard is privately funded, and there's a saying where I come from: Those who pay dictate the way.

Re:Authority

[gogodidi]

I just sat my IB English exam, and I wrote an essay about how the youth culture is largely affected by the media (used loosely, means RIAA and pretty much everything else). I concluded that the media does largely affect 'our' culture, and that many people don't like it; it's all amount money and companies such as the RIAA are hindering college students from becoming valuable members of society, and stifling their creativity really doesn't help either. I really hope that some of those college students protest, even if just a little bit, I know I will when I get to college.

Re:Authority

[SillyNickName4me]

If they lose this fight, they'll singlehandedly make the "Ivy League" a thing of the past. I'm not siding with the RIAA here, but the law, unfortunately, is on their side.

The law isn't on their side when it comes to going on a fishing expedition. Also, the number of cases that the RIAA has won in court so far (that is NOT the same as people settling) isn't very high, and their cases being thrownn out isn't exactly unheard of..

I'd rather think that a law professor has some idea about this, and about the legal risks in general. I would even go as far as suggesting that he probably has a lot more of an idea then you and me together.

Are these colleges prepared to take the risk of losing everything to stand up for their students?

Is this society prepared to destoy such colleges and their future in order to protect the ill-gotten exclusive rights of an industry that is doomed to failure?

Re:Authority

[NewYorkCountryLawyer]

From my experience litigating against the RIAA, it has no interest in the rule of law whatsoever; its goal is to make money and monopolize as much of the digital music space as it can.

1. Although the Federal Rules of Civil Procedure encourage the making of all motions on notice, the RIAA does everything it can ex parte. The John Doe proceedings and motion for discovery are initiated without notice to anyone, even though it would be a simple matter to furnish the university, college, or ISP with copies of the motion and other papers, which could in turn be disseminated to the "John Does" to enable them to consult with counsel and take action if so advised.

2. The RIAA joins unrelated John Does, also in total contravention of the Federal Rules of Civil Procedure.

3. In 2004 the federal district court in Austin, Texas, enjoined the RIAA to cease and desist from that practice. The RIAA has been in contempt of that order ever since, merely taking care to avoid litigating in Austin, Texas.

4. The RIAA conducts a sham investigation which, at best, identifies a person who paid for an internet access account... and then turns around and sues that person without any information that that individual is actually liable for copyright infringement.

5. The RIAA has invented a claim for "Making available" even though there is no legal authority.

6. The RIAA has invented a concept of an "online media digital music distributor", and uses it to tarnish people who've never engaged in file sharing in their life.

7. The RIAA never honors its pretrial discovery obligations, taking advantage of the fact that most defendants do not have the resources to engage in a constant stream of motion practice in order to get even the most rudimentary discovery.

8. It makes frivolous assertions of "privilege" and "confidentiality" solely to make litigation more expensive for defendants in other cases.

9. The RIAA will disclose, and distort the contents of, confidential settlement discussions.

I could go on and on. But to anyone who thinks the RIAA is trying to enforce copyright law.... think again.

The key, for me, is that our system of law is an adversarial system. For there to be fair outcomes there needs to be a fight of equals, a level playing field. The RIAA has embarked on a program of using colossal wealth to prey on defenseless victims, so that it can rewrite copyright law in a way that will maximize the recording industry's wealth. And it tramples on their civil rights in the process. ACLU, Public Citizen, the Electronic Frontier Foundation, the Amerian Association of Law Libraries. the US Internet Industry Association, the Computer & Communications Industry Association, and others have submitted amicus curiae briefs pointing these things out.

The article written by Prof. Nesson and Ms. Seltzer is a landmark.

The key message for the university, in my view, is this: "we should be assisting our students both by explaining the law and by resisting the subpoenas that the RIAA serves upon us. We should be deploying our clinical legal student training programs to defend our targeted students."

Harvard should make sure that the due process rights of its students are protected.

Re:Authority

[jamar0303]

And at this point it's plain the MAFIAA isn't paying.

Re:Authority

[Opportunist]

Shhhh. C'mon, do you really have to give them ideas?

Then again, it's easier and more efficient to buy laws and actions from congress than policies from schools. And probably cheaper, too.

Re:Authority

[gogodidi]

We studied the media option. I didn't write about the RIAA specificially. I am in the A2 level of English (I had to in order to take Norwegian. I also did it at the Standard Level, because I didn't want to take Physics or computer science SL). This meant that the exams were structured thusly: paper 1: Comparative commentary on two never before read works while paper 2: An essay on a particular question regarding studied literary or non-literary options. Paper two therefore asked questions on such things as Global Issues or Media. The media question I answered was somewhere along the lines of "The media creates the youth culture. Do you agree with this? Answer the question using material you studied in class." A simple question, I could have made up a whole lot of nonsense and claimed they were facts. I did however take it seriously and used real examples, and the essay was in my opinion, relevant to the Slashdot posting. Shame you replied anonymously, I guess you'll be thinking the worst of me for a while from now.

Re:Authority

[Anonymous Coward]

colleges/students stand for the future . if anyone should fight ther RIAA, it's them .

When students' families are bankrupted by RIAA lawsuits and they can't afford college anymore, their future is called "burger flipping" and "trash hauling". They won't be in any position to do anything.

Colleges and schools are strapped for money, they can't fight an economical juggernaut like the RIAA.

Imagine you're a student: you get sued, you will probably lose, and even if you don't your opponent can afford to drag the suit out until you're bankrupted. It's either shut up and think about yout future, or a lifetime stuck with a menial job and, possibly, debt slavery.

The students and colleges don't have a chance. Big money has enough economical and political power to make resistance useless. Deal with it, it's over. It has been over since the beginning.

Re:Authority

[ckaminski]

Harvard has, at last I checked, nearly a $12US BILLION endowment. That's enough to take on this challenge, I assure you!

Re:Authority

[gogodidi]

How does suing them help them? If they can't afford college, how are they going to become something more valuable than a mcdonalds employee? Unfortunately, One can't get very far today without a college education.

Re:Authority

[hey!]

Harvard. Meh. It's not like he was a professor at Regent University Law School or anything.

Re:Authority

[westlake]

the number of cases that the RIAA has won in court so far (that is NOT the same as people settling) isn't very high, and their cases being thrownn out isn't exactly unheard of..

The number of federal civil cases that end in a verdict by a judge or jury is between two and four percent.

It takes a substantial commitment of time and money to get that far, even though your chances of winning are no better than fifty-fifty. But to lose, is to lose big.

Re:Authority

[SillyNickName4me]

The number of federal civil cases that end in a verdict by a judge or jury is between two and four percent.

Interesting, but no real surprise. Usually it is a lot cheaper to settle a case then to pursue it to the end even when you know you are likely to win. This is why there is little point in including those cases, and why I argued to ignore them when looking at the statement that 'the law is on the side of the RIAA'. Rather, we should look at those cases that did end in a verdict from a judge.

I think that such cases do not support the idea that the law is on the side of the RIAA in their current attempts to deal with copyright infringement.

Of course initially the law is on their side when they try to pursue copyright infringement, but not when their idea of that is throwing lawsuits at random people, not preparing their cases properly, and generally aiming for people to settle and use that in a propaganda 'war' instead of actually trying to get some kind of compensation from those who cause them actual damage (and lets nto even get into their absurd statements about the damage)

It takes a substantial commitment of time and money to get that far, even though your chances of winning are no better than fifty-fifty. But to lose, is to lose big.

So, the RIAA better be sure they have a really good case. If they don't liek the risks they shouldn't be playing the 'game'.

Re:Authority

[Nom du Keyboard]

Ray,

This clear statement of all that's wrong here belongs on your blog, for all the people who need to see it and won't find it here first.

Re:Authority

[ajanp]

Don't forget that at the moment, there is just a Harvard law professor (albeit a reputable one) that is simply advocating resistance against the RIAA, and not the university as a whole.

Given the sheer volume of RIAA notices sent out to universities throughout the country, Harvard has yet to receive any notices for copyright infringement. Until Harvard actually receives some notices (which seems increasingly unlikely given Harvard's reputation and also that the RIAA is generally looking for students that are likely to settle out of court for $3-5k (generally a pretty paltry sum when you consider it in a context of how much they are already paying for a college education).

It's great that a reputable Harvard professor is supporting change and urging other universities to resist RIAA notices, but Harvard students still remain untouched. Until the RIAA goes after Harvard and the university decides to actively defend the students, we can't really know if Harvard would actually support the students and fight the RIAA.

Re:Authority

[The_Wilschon]

Better than bending over and taking it from the RIAA, yet still learning nothing. Most people are never going to care enough to learn why they take whichever course of action they take, so I'm satisfied that they do fight, whether they know why or not.

I'd rather they learned, and I'm willing to put forth a little bit of effort to teach, but I'm not going to tell them not to fight just because they don't know why.

Re:Authority

[ultranova]

Is this society prepared to destoy such colleges and their future in order to protect the ill-gotten exclusive rights of an industry that is doomed to failure?

Since the society is ruled by politicians who are paid by that very industry, I'd say that the answer is "yes".

Re:Authority

[Fordiman]

True. Penn's been quietly looking the other way for ages - hell, I even know that a few of their IT slaves tell the students to use PeerGuardian to keep the higher ups and the RIAA the hell out of their torrents.

Well, sometimes. The student has to be one of the 'cool' ones, not one of the assholes that wants to know why his email isn't working every freaking day, even though he just can't follow the damned instructions to set up Outlook.

Re:Authority

[Fordiman]

Sounds like how things get done.

Seriously, it's the wont of most people to fail to learn anything. Ask your average voter why he votes the way he does - you'll notice that, nine times out of ten, it's a stupid reason like, "Well, I just don't like the other guy" or, "I think he's got an honest face".

Goddamnit, why do I get punished for being able to type 90 WPM??

Re:Authority

[Fordiman]

Heh. You'd think that, wouldn't you?

The law isn't on the RIAA's side here. The school has no responsibility to prevent filesharing on their networks, much like Verizon doesn't. In fact, the only persons who have responsibility are those actively engaged in torrenting.

Now, I'm all for bandwidth throttling or connection suspension for bandwidth abuse - the IT department has to ensure access to all its 'customers' - but playing stoolie for the RIAA is not their job, not on a single legal document.

Re:Authority

[Fordiman]

Hey, Ray, I gotta say I respect you and everything you do to keep us at Slashdot and across the inter webs informed about the RIAA's legal mishandlings.

I would like your opinion - not as a lawyer, but as a consumer - on an Open Letter I wrote for the RIAA / MPAA. It's linked in my sig.

The short version: I put forth an olive branch, a light criticism of DRM, and a potential alternative means for enabling media interoperability, prevention of casual piracy, ensuring the correct defendant for anti-piracy litigation, and doing all of this using existing and future media formats.

Re:Authority

[Dun Malg]

If they lose this fight, they'll singlehandedly make the "Ivy League" a thing of the past. I'm not siding with the RIAA here, but the law, unfortunately, is on their side. Are these colleges prepared to take the risk of losing everything to stand up for their students? Please. Spare us the hyperbole. They don't stand to "[lose] everything". Worst case scenario, the RIAA takes this before the courts and the school is ordered to turn over the information. If the person in charge of the info refuses, they are thrown in the clink on contempt until the info is turned over. That's all. I fail to see how your idiotic prediction of the ivy league becoming a thing of the past fits in there.

Re:Authority

[NewYorkCountryLawyer]

Thanks, Fordiman.

Unfortunately, it's out of my league. I'm just a country lawyer. I really can't evaluate such things.

The one thing I'm sure of though is you can't make peace with thugs, you just need to beat them.

Re:Authority

[NewYorkCountryLawyer]

Dear Nom,

Don't you think the people who read my blog are well aware of this stuff, and more?

I try to keep palaver to a minimum on the blog, and devote myself to reporting the news, because
-I have limited time
-The defendants and defendants' lawyers need to know the news of what's going on in the litigations
-Writing takes time.

Re:Authority

[Hotawa Hawk-eye]

No, in order to reach the general population, we need people to realize they will be affected directly. It's too eacy to say "Well, I don't pirate music or movies, so why should I care about the RIAA or MPAA?" [Yes, I know it's copyright infringement, but the RIAA and MPAA have tried their damndest to tie the behavior to the word 'pirate'.]

I'd love to see an ad showing a guy trying to record a baseball, football, or some other sporting event and getting a message on his TV that says "In order to record this program, you must provide a letter demonstrating express written consent from the Commissioner of Major League Baseball." and then a caption that reads "Thanks, Congress, for your work to 'improve' copyright".

Re:Authority

[watchingeyes]

First of all, I highly doubt the Universities would "lose everything" by resisting a subpoena. They might lose a few grande in lawyers fees by filing a motion to quash... However, there is no law that says a lawyer has to file the motion, so they could even have law students and faculty do it as a project. If they lose the motion....they turn over the documents and everyone goes on their merry way.

Second of all, the law isn't simply only on their side. This is evidenced by the recent string of motions lost by the RIAA in numerous cases they have filed. In-fact, it's fairly ingenuous to claim the law is on their side when it has never even been tested. Until the RIAA doesn't run away crying like a little girl every time one of their cases comes close to trial, the law will be unclear.

Re:Authority

[NewYorkCountryLawyer]

You're exactly right, Hotawa, that the effects of this litigation campaign could go way beyond anything having to do with p2p file sharing of music files; the amicus curiae brief submitted by US Internet Industry Association and Computer & Communications Industry Association in Elektra v. Barker expresses eloquently how the RIAA's creative new ideas on expanding copyright law, if accepted by the courts, could shut the internet down.

Re:Authority

[NewYorkCountryLawyer]

They will always run away crying like little girls rather than face a trial. That's what bullies do. They like to pick on the helpless and defenseless. When they find someone who fights back, they back down.

Re:Authority

[NewYorkCountryLawyer]

Actually I take that back. Most little girls I know are a lot braver than the RIAA running dogs.

Re:Authority

[watchingeyes]

Would you mind if I republished your comment on my Blog? Just reply to this post to let me know. Thanks!

Re:Authority

[NewYorkCountryLawyer]

Yes but the impact of the letter goes way beyond Harvard. Even if the RIAA never gets up enough nerve to take Harvard on, the letter is, or should be, read by college administrators, counsels, student legal services offices, and ISP's, all across the land.

Re:Authority

[NewYorkCountryLawyer]

Fighting the "John Doe" subpoena process would be maybe $5000 worth of legal time.
No college would have to pay that, it would have its counsel's office handle it.
Those universities with law schools could have their legal clinics handle it or the counsel's office.
All they need to do is take the stuff in my Open Letter to Colleges and Universities and put it together into some legal papers... an easy job for any litigator.

Re:Authority

[NewYorkCountryLawyer]

No problem; thanks for asking.

Re:Authority

[JonathanR]

I can see you didn't study English at Harvard.

Re:Authority

[bhiestand]

No, he's a Yale man.

Re:Authority

[Joebert]

What gave it away ?
Was it the fact that there's humor in the statement ? :)

Re:Authority

[Raenex]

"He who pays the piper calls the tune."

Re:Authority

[Opportunist]

RIAA: "We have the best lawyers!"
Havard: "Yeah, but did you check their diplomas and where they came from?"

Re:Authority

[JonathanR]

If the use of incorrect grammar was deliberate for the sake of humour, then the joke went right over my head. Perhaps you'd like to enlighten me of the context of such a Joke?

Re:Authority

[Fordiman]

The RIAA member companies run a business, and as a result, I gotta assume the shareholders and the execs are just out to do what any businesspeople are: make a profit. You know, the whole "It's not really that they're bad people; they just don't know a better way to do things" argument. Even if they ARE bad people, they have to realize that bad PR cuts into their profits about as far as piracy does - they're replacing one loss with two (legal fees plus bad PR).

It's probably naive on my part to think that they'd even listen to such crazy talk as holding actual pirates responsible for piracy, or enabling user interoperability without compromising the first point - the MP/RIAA has become so entrenched in their padlock line of thinking that they wouldn't even bother looking at another alternative - but hey, I like to think my sort of idealism has its place.

Interesting possibilities

[rde]

We should be deploying our clinical legal student training programs to defend our targeted students.
Ooh, this raises some intriguing possibilities. If a university's legal faculty 'n' lawyers-to-be rally around the students, a whole body of experience will quickly build up. By the time they become fully-fledged lawyers, a whole bunch of students will be familiar with the xxAA and their tactics.
Could lead to some interesting exam projects, too; "Find a granny being sued by the RIAA and prepare a suitable defense. For bonus credit, find a granny who doesn't have a computer but is being sued by the RIAA."

Re:Interesting possibilities

[Anonymous Cowpat]

no, no. Find a granny who DOES have a computer and is being sued by the RIAA for bonus marks. Not only is that harder, but the task of preparing the defence is fractionally harder too.

Re:Interesting possibilities

[IP_Troll]

A legal clinics are typically free, so this also removes RIAA's threat that "you are going to spend more in attorney's fees fighting us, so you should just settle for $X,000".

Re:Interesting possibilities

[houghi]

and when they have there degree, they can get high payment from said **AA, because they know the material so well.

Re:Interesting possibilities

[Opportunist]

It gets better. "Find a bunch of grannies without a computer, prepare a countersuit and find out just how much money you can pump out of the *AA."

Re:Interesting possibilities

[Fordiman]

Yeah. Most likely they'll advise the RIAA that they can't actually win the case, and are very likely to lose a bunch if they can't settle.

His daugther works on a PhD in CS at Harvard

[null-und-eins]

Nesson's daughter Rebecca (http://www.eecs.harvard.edu/~nesson/) works on a PhD in CS after going to Law School. Hence, you can be sure that he is very well aware of the discussion inside the CS community. Rebecca won Google's Anita Borg Fellowship 2007 (http://www.google.com/anitaborg/) and I remember here as a very nice person all around.

Thank you

[aarku]

Thank you NewYorkCountryLawyer. Keep doing your thang!

Re:Thank you

[NewYorkCountryLawyer]

You're welcome, aarku.
This was a landmark article, I was very happy to see it. This could be the beginning of the end of the reign of terror.

RIAA Business Plan

[Foehg]

Speaking of the RIAA, I think they've been cribbing business plans from the ad for wall-size maps on the back of my granola. It says "Buy USA at retail price, get the World Free!"

Re:No no no!

[ozmanjusri]

Ignnorance is strength.

Tough guy, huh?

Re:About Time

[pflickner]

Yeah, considering you can go to Borders, buy a cd, and bring it back. Oh, the policy is that you can't return open cd's, but if you whine a lot and ask to speak to a manager, you're good to go. The RIAA doesn't even go after them, so I can't figure out why they go after moms and kids.

Your Rights

[V2-V3]

Hell yes, Stand up for what is right!

Copyright Law

[deAtog]

With all the talk about this recently, I'm surprised someone hasn't mentioned this sooner... Granted I'm not a lawyer, but last I read, copyright law explicitly states that it is perfectly legal for students attending an educational institution to make a copy of any copyrighted work for educational purposes. Who's to say the students in question weren't doing so for this exact purpose?

Re:Copyright Law

[Agamemnon13]

Yup. The last time I checked anybody could make a personal copy of music, movies or games that they own for back up purposes. I personally use this when I want to watch my movies or play my games without putting wear on the originals or when not near my console or CD collection. Works wonders and I guess as long as you get the files back at some point you could even loan them out to your friends. ;)

Re:Copyright Law

[Dracil]

Um, wait. Wouldn't this apply to textbooks too?

Re:Copyright Law

[Jah-Wren Ryel]

last I read, copyright law explicitly states that it is perfectly legal for students attending an educational institution to make a copy of any copyrighted work for educational purposes.

And what country where you in when you read that? Because it sure ain't the USA. You probably just heard someone somewhere say something about the component of the fair use defense that involves an educational exemption and then totally stretched it into something way, way larger than it really is.

Re:Copyright Law

[cpt kangarooski]

No, that's not true. Making unauthorized copies of a copyrighted work is never permitted for any reason unless it either falls under fair use (which is on a case-by-case basis; some backups would be ok, others would not be, it depends on the circumstances involved), or there is some other exception in the law that applies (e.g. 17 USC 117, which only applies for software, but in practice, hardly ever).

Nice try, though.

Re:Copyright Law

[deblau]

Sorry, educational use isn't enough. It's something to consider, and it's given a lot of weight, but it's not determinative. Please go read the law again, carefully.

Re:Professor's downloads?

[rs79]

I met Charlie Neesan once when the icann stuff was getting started in Cambridge. He's (very) good people. He also taught Lessig, Edeleman Molly "babe" van Howling and Zittrain.

law schools

[timmarhy]

i believe there's 2 things they tell you in law school 1. never sue a church - they are exempt from just about everything 2. never sue a university with a well stocked law faculty - you'll become the target of the best legal minds in the world who will have 100's of students working for free.

Re:law schools

[cskrat]

Then consider that likely a good chunk of the law student's are planning to be Nth generation lawyers. This means that you get to bring in parents, siblings and possibly grandparents that may be in firms that would like to be precedent setters in **AA style cases.

Yeah real smart for the **AA's to go marching into a den of hundreds (if not over a thousand) highly vicious (Type-A personality) lions (Lawyers). (parenthetical commentary FTW)

Re:law schools

[that this is not und]

Well, the converse to this is that a bunch of established alumni call up the trustees at Harvard and say: "why are you squandering the credibility of the University on kids who want to listen to a bunch of Brittany Spears songs for free?" The 'parents, slibings and possibly grandparents that might be in firms' might feel that Harvard has better legal stands to focus on.

Sorry for singing a different harmony here, folks...

Re:law schools

[Dun Malg]

Well, the converse to this is that a bunch of established alumni call up the trustees at Harvard and say: "why are you squandering the credibility of the University on kids who want to listen to a bunch of Brittany Spears songs for free?" The 'parents, slibings and possibly grandparents that might be in firms' might feel that Harvard has better legal stands to focus on.

Sorry for singing a different harmony here, folks...
Unless they're write a huge check with dependable frequency, the trustees don't give a crap what alumni have to say. Seriously, Harvard isn't some sort of democracy of the alumni. It's a private school. Those that agree with Harvard's stance will help, and those that don't, won't. They've already decided to fight it. Do you really think a phone call from some 80 year old geezer who graduated Harvard in the 40's and has attended two football games and donated $150 in the intervening time is going to change their mind?

Re:law schools

[that this is not und]

The truth is somewhere in between what you posit and what I posited. The alumni have some say, and some have a significant say due to donations and/or their clout by other means.

I doubt that the trustees are taking a deep rooted ideological stance here. One professor is being allowed to spout off.

Re:law schools

[Raenex]

why are you squandering the credibility of the University on kids who want to listen to a bunch of Brittany Spears songs for free? Seems like the main point of the article was to plug Noank Media. Follow the $ signs in the chart. Look at who stands to profit from the new "copyright-business model".

Re:Professor's downloads?

[Chexum]

[CaptainObvious]Hah, you did not read the article![/CaptainObvious]

You probably missed the part where he's plugging Noank Media against the old establishment.

Believe you to be mistaken.

[adam]

I am also not a lawyer, but I don't believe what you are positing would fall under fair use. In 1989, Kinkos was found guilty of copyright violation for copying substantial portions of textbooks (up to 100 pages at a stretch), and fined $1.9M plus court costs.

Basically (as I understand it) there are several factors that fall into the test for fair use. First, is whether the use is for commercial or non-profit use. In this case, copying the music would probably pass the test. The second test is whether the work is "creative" or "informational" in its origin. In this case, the deck would be stacked against a student copying the average RIAA CD for "educational" purposes, as the work itself is probably of a creative nature. The third factor is the scope of the portion used. Simply put, the less you use, the more chance it is fair use. So copying a whole CD wouldn't pass this test. Copying a whole "hit" song probably wouldn't either. There was an actual case where a church choir director was found guilty of copyright infringement for copying essentially all of the lyrics (or something like that) from a song, arranging it to his music, and distributing copies to his choir. It was found that despite his good faith desire (not to infringe), he was still infringing. I recall the famous instance of Gerald Ford's memoirs as well, where only a few hundred words of his 100,000 word work were reprinted, and the supreme court found in his publisher's favor.

So.. in summary, I think you are mistaken. It (copyright law) doesn't state what you think it does, and the test for fair use definitely isn't "explicit" (as you said).. it is rather subjective. Nice shell game, though. Anyone who is a real lawyer, feel free to respond and repudiate my whole post ;)

Re:Believe you to be mistaken.

[pionzypher]

I don't think the Kinkos corporation you used as an example is likely to be considered eligible.

1. They're not a student.
2. They do not attend an educational institution.

And all that other stuff too, being a business, profiting off of it, etc.
Your point stands though.

Finally, a ray of hope!

[nocynic]

It is fantastic and the right thing that was needed. A reputed university such as Harvard propagates the fight against the RIAA. Why does it make such a difference when Harvard does it? Well, we all know that University of Wisconsin (Madison), albeit respected, does not match to the global reputation and brand recall that comes with an Ivy league university such as Harvard. Harvard's name is familiar to everyone around the world. Students in India, China, Pakistan the UK, everyones knows of Harvard. Even the crowd that isn't aware of the education system in other countries (the US), knows of Harvard.

So, Harvard fighting the RIAA, if publicized correctly by the media, will get the attention of everyone around the world. Take the MIT dean issue that came up recently, for example. That was splashed all across the news channels everywhere in the world!
I am currently in India and it was quite a talk here when the MIT news came out. I'm talking about local news channel covering the story! If the same happens with Harvard's move, is could almost be certain that people can will be educated more about the problem and its impact on internet downloads.

Re:Finally, a ray of hope!

[drsquare]

So, Harvard fighting the RIAA, if publicized correctly by the media, will get the attention of everyone around the world. Take the MIT dean issue that came up recently, for example. That was splashed all across the news channels everywhere in the world!

Really? I only heard about it on Slashdot.

Re:Finally, a ray of hope!

[kni52]

It's good to see that I'm not the only one who gets all their news from slashdot. ;)

Re:Professor's downloads?

[aztracker1]

I'm not sure if you're trying to be funny, or cynical here... My father in law passed away a week and a half ago, and I was tasked with setting up a website in his memory... My wife wanted to use a few songs for the site, which needed, or was intended to be up before the funeral (this coming tuesday)... I said that I could only use Creative Commons, or Public Domain music without permission.... the hard part was finding music suited to the event and the person... A few letters were sent out to the commercial artists she had wanted to use.

The licensing cost wasn't so much the issue (something like $30/year (USD) on a given example. The hard pill to swallow, is it required a bunch of paperwork, with two weeks to review, and decide if to grant or decline license for the song. But worse still is that it would take up to and beyond 8 weeks to actually grant said license.

Upon reviewing several thousand songs over several hours from garageband.com, we found one creative commons song that was suitable. And got permission from the author of another, very appropriate song, for use of it... The songs are encoded, and embedded into flash files, and streamed at a lower quality in mono (mainly for bandwidth issues). As much as the system in play for online/internet radio sucks... it would be nice to have a better interface for licensing a song for playback on a website, without direct access to a higher quality digital recording... One shouldn't have to jump through so many hoops...

On a side note, at least now my wife, and a few relatives have a much better understanding of how F'd up copyright law is, between this issue, and trying to get copies of photos for use at the funeral.

Reminds me of something reported in Australia

[Gangrenous BoB]

"Seeking to outsource its enforcement costs, the RIAA asks universities to point fingers at their students, to filter their Internet access, and to pass along notices of claimed copyright infringement."

This reminds me of something the ARIA wanted to/wants to implement in Australia. http://www.news.com.au/story/0,10117,21555941-2,00 .html?from=public_rss

"Under this system, people who illegally download songs would be given three written warnings by their Internet service provider.

If they continued to illegally download songs, their internet account would be suspended or terminated.

Those with dial-up internet could face having their phone disconnected."

Re:Reminds me of something reported in Australia

[abushga]

>Those with dial-up internet could face having their phone disconnected."

Um, yeah. Watch out for all those pirates who download music files over a dialup connection.

Re:Reminds me of something reported in Australia

[Dan541]

Australia simply docent have the bandwidth to contribute to piracy on a mass scale.

There is even a political party using internet speed as one of their election promises.

Re:"Defenseless" is no excuse for infringement

[DamnStupidElf]

The RIAA would not be threatening the students if the students weren't violating copyright. Stop violating copyright, and the RIAA has nothing to go after.

You'd think so, but the MAFIAA has also been threatening people without computers, dead people, and small children. There's really no evidence that any of the threats they've sent would stand up in a trial, since so far the cases that have gone to trial are going rather poorly for the MAFIAA.

Being "relatively defenseless families without lawyers or ready means to pay" is not justification for violating copyright. I don't have the an attorney on retainer or the means to pay, but that doesn't mean I can speed or violate traffic laws with impunity. "But judge, I can't afford the ticket so I shouldn't be prosecuted" won't fly very far in court. People in this country need to start taking responsibility for themselves.

You may not be able to violate traffic laws with impunity, but police officers, judges, and politicians routinely do so. What does that tell you about the legal system and how people with money and power can abuse it? The MAFIAA has enough lawyers on retainer to simply scare normal people into settlements which cost less than a proper legal defense. It's pure extortion and racketeering.

Re:"Defenseless" is no excuse for infringement

[grimJester]

Being "relatively defenseless families without lawyers or ready means to pay" is not justification for violating copyright. I don't have the an attorney on retainer or the means to pay, but that doesn't mean I can speed or violate traffic laws with impunity. "But judge, I can't afford the ticket so I shouldn't be prosecuted" won't fly very far in court. People in this country need to start taking responsibility for themselves.

You presuppose that they are guilty, which is not the way the law works. Innocent until proven guilty, and these students have not been proven guilty. In addition, they have a right to defend themselves regardless of whether they are innocent or guilty. As things stand, they don't have the resources to defend themselves. The professor is proposing that they be given the resources to do so.

Even the guilty should be able to defend themselves in court.

Re:"Defenseless" is no excuse for infringement

[Anonymous Coward]

Hmm, guilty until proven innocent makes it easy. I need to get in on this.

Music, been done.

Linux, been done.

Dog Poop hasn't been done yet.

You have let your dog poop in my yard. I have experts that can confirm this.

If you pay me $3500 in fees, admit your guilt, and promise to never let your dog poop in my yard again, I will forgive any past pooping offenses.

If not, I demand you ship your dog to my experts at your expense for examination to prove it was your dog that poopped in my yard. If you do not produce your dog, I will demand the judge find you in contempt of court and imprison you. I also demand any family members that live with in 100 miles of you produce their dogs for examination.

Lame excuses like you do not own a dog, or being in the same room with a dog would kill you will not go over well with the judge. The fact that you and your dog live 3000 miles from my yard is not of my concern.

Please make checks payable to the Dog Poop Association of America (DPAA), Washington DC.

Re:Professor's downloads?

[ckaminski]

Zittrain and his Digital 9-11 crap is just as bad as that Y2K guy crying the end of the world...

If I never hear him utter "Digital 9-11" again, I'll die a happy man.

Digital Nine One One

Digital Nine One One

Digital Nine One One

Okay, I'm done.

One statement bothers me...

[Garwulf]

Well, I'm glad to see more and more people taking a stand against the flagrant abuses of the RIAA - with luck, it will soon get to the point that the RIAA can no longer get away with any of it. However, one statement in the article really bothers me:

"We need not condone infringement to conclude that 19th- and 20th-century copyright law is poorly suited to promote 21st-century knowledge."

Now, I may not be a lawyer, but I am a professional writer, and an author, and part of my profession requires me to have a working understanding of copyright law. So, this statement bothers me for a couple of reasons:

1. It does not differentiate between copyright law and patent law. Copyright law is actually quite good at allowing for the promotion of knowledge, as you cannot copyright an idea - only the exact implementation of one. Patent law, on the other hand, has become very restrictive in regards to the promotion of knowledge, and you CAN patent an idea. (You can patent a tax strategy, for crying out loud.)

2. I don't know enough about 19th century copyright law, but frankly, 20th century copyright law based on the Berne Convention is quite good at what it does, and doesn't really need to be fixed. At best, it needs minor modifications.

Expanding on the second point, there seems to be a "shiny thing" reaction in the copyright industry in regards to the Internet, and it really does miss the point. The RIAA, legislators, and even some lawyers are spending a lot of time panicking in awe at the shiny new Internet and what it can do, and failing to notice that at the end of the day, a work is either infringed or it isn't, just like it was before the 'net. As far as the actual letter of the law is concerned, how it got that way is really unimportant.

(Think of it this way - somebody figures out how to commit a murder over the Internet by making his/her victim's keyboard deliver a deadly electric shock. Do the murder laws now need to be rewritten? Of course not - at the end of the day, it's still murder, plain and simple.)

If you look at the Berne Convention, you see:

1. Respect for the creator's wishes for their work.
2. Ability for the creator to transfer rights and copyright.
3. Allowance for fair use and the use of ideas, but not exact implementations, in derivative works.
4. Allowance for public domain.
5. A recognition that these rights and provisions apply to new media.

If you think about it, it's simple, covers all the bases, allows for everything from Creative Commons to the Open Source movement to a novelist receiving royalties in any media - and has been around in its current form since the 1970s. I wouldn't call it a broken tool at all. I just wish people would stop panicking because there's a new shiny thing and coming up with daft measures (Vista-style DRM anybody?) to protect against it.

Re:One statement bothers me...

[Megaport]

The parent post has totally missed the point.

1. It does not differentiate between copyright law and patent law. Copyright law is actually quite good at allowing for the promotion of knowledge, as you cannot copyright an idea - only the exact implementation of one. Patent law, on the other hand, has become very restrictive in regards to the promotion of knowledge, and you CAN patent an idea. (You can patent a tax strategy, for crying out loud.)

The statement was never intended to make such differentiation, because copyright law is indeed broken at a fundamental level. I'll expand on this point below.

2. I don't know enough about 19th century copyright law, but frankly, 20th century copyright law based on the Berne Convention is quite good at what it does, and doesn't really need to be fixed. At best, it needs minor modifications.

Copyright law's capability to identify infringing acts does not give any indication of the law's ability to perform the function that it was designed for, at a reasonable cost to benefit ratio for society.

Copyright is an artificial bounty that society has granted to some of its members, but the cost to society of enforcing that bounty has dramatically increased in recent years.

At some point, society is going to shrug its shoulders and say that the cost of protecting these social policies far outweighs the benefits they bring to us. Many of us are impatient for that time to arrive. We should be spending our time thinking about the future of intellectual property law, not trying to prop up the old regime.

-M

Re:One statement bothers me...

[arevos]

I don't know enough about 19th century copyright law, but frankly, 20th century copyright law based on the Berne Convention is quite good at what it does, and doesn't really need to be fixed. At best, it needs minor modifications. What do you mean by "minor modifications"? Copyright is a legal incentive to encourage authors to produce more creative works, by allowing the author a temporary monopoly over the work. But whilst this monopoly might encourage new works, it also restricts people's access to existing ones. In the end it it is a balancing act between providing a reasonable incentive, and allowing people access to existing works.

The Berne convention protects an author's work for 50 years after his or her death. Now, somehow this period seems rather excessive. How many writers would say, "I would not write this book if I did not have a guarantee that 50 years after I die, I would still have the copyright." Most people do not plan that far past their own death, and whilst most people want to provide for their children, I don't think many people plan three or four generations down the line.

If copyright were reduced to a fixed period of 50 years from creation date, or even 40 or 30 or even 20 years, would we see a significant drop in creative works? And would that drop be greater than or less than all of the new content produced from adapting older works?

Would you consider an 80% reduction in the length of copyright as being a "minor modification"?

Re:One statement bothers me...

[Dun Malg]

2. I don't know enough about 19th century copyright law, but frankly, 20th century copyright law based on the Berne Convention is quite good at what it does, and doesn't really need to be fixed. At best, it needs minor modifications. The Berne Convention is a load of crap. It is completely at odds with the basic premises US copyright law is based on. That's why it took over 100 years (1887 -> 1989) for the IP industry to push the US into signing.

If you look at the Berne Convention, you see:

1. Respect for the creator's wishes for their work. This was the main sticking point. The notion that creators somehow "own" their creations had historically (and logically) been considered completely ludicrous (which it is). With the birth of the recording industry however, the 20th century saw a concerted effort to push the notion of "copyright holder ownership", rather than the "limited monopoly on copying" the law stated. Now, the prevailing notion is that copyright == ownership. The propaganda has worked well. Fortunately, the digital revolution may smash that idea with one stroke. With the cost of replication having dropped to near zero, people are beginning to realize that you simply cannot own information. The law may say "life + 70", but the ridiculousness of such a term has caused people to ignore it and render it moot. Copyright is not respected because it is not deserving of respect. If the term was lowered to something reasonable like 14 years, renewable once for 14 more (as it was originally), I reckon we'd see less contempt for copyright.

When considering copyright, it's important to keep in mind that the creations of writers and musicians belong to all of us. They are artifacts of our common culture. The creator has every right to control his creation up to a point--- that point being the moment he shares it with another person. Too many people have blindly accepted the "Disney" version of artistic creation. A look at the short history of copyright, with a comparison to the very long history of artistic work before copyright gives a much more realistic view of things.

Re:One statement bothers me...

[Garwulf]

Well, seeing as I just wrote a post refuting all of this - and frankly, your view of history is uninformed - I'm simply going to link to my post, rather than typing it all out again:

http://slashdot.org/comments.pl?sid=233553&thresho ld=1&commentsort=0&mode=thread&cid=19010161

It's men like this

[blind biker]

that keep Harvard on the map.

No matter how bad a reputation the USA may have nowadays, it's top universities haven't had any problem attracting international talent, even from highly developed countries like Germany.

Unfair Copyright Laws are Creating This

[Nom du Keyboard]

Copyright law ceased being fair when copyrights started being massively extended retroactively. At that point it was no longer about encouraging the creation of artistic works by securing for a limited time exclusive rights to profit from those works. It was simply about money, and the perpetuation of profits of one particular industry. This is the very thing thing that USA copyright law under the Constitution was supposed to prevent, and which was going on widely in Europe at the time the Constitution was written.

Existing works had already been created under the copyright laws of the time. (28 years plus one extension of 28 more years). The laws fully served their purpose of encouraging the creative arts. No change in the law afterwards would change what had been done. These works should have moved into the public domain, where new artists could freely use them to create even newer works to enrich society. Instead, the content creation industry got Congress to enrich them by extending unreasonably the time of protection. Congress did not represent the people at large that day.

The President failed in his job by signing this bill, and The Supreme Court failed miserably in their job of understanding the intent in the US Constitution by upholding the unwarranted extensions. And the court system now fails even more miserably by permitting the RIAA suits to exist in the first place, and then be dropped in ways that cost never-convicted defendants tens of thousands of reimbursed dollars, the moment the RIAA might lose. All this while the RIAA tries to trick the courts into granting them rights never included in the original legislation. If the RIAA can fool uninformed judges into creating precedents to be used in future cases, they will have de facto created new law for themselves.

Filesharing should be viewed as an act of civil disobedience against an industry that has received out-of-proportion, and unconstitutional, protection from all three branches of the government.

Re:Unfair Copyright Laws are Creating This

[Garwulf]

"These works should have moved into the public domain, where new artists could freely use them to create even newer works to enrich society. Instead, the content creation industry got Congress to enrich them by extending unreasonably the time of protection. Congress did not represent the people at large that day."

As a creative artist on a professional, I find that statement incredibly funny. You really have no idea of how we work, do you? You also have no idea of how copyright works - here's a hint: you CAN'T copyright an idea. You never could.

Now - oh my god - somebody like me actually gets to keep the thing he creates and do with it what he will, and even leave it as a legacy for his children. How, um, reasonable. And other people get to take the ideas he suggests and do their own thing with them, and their right to do so is protected under copyright law. How, um, reasonable.

Do some fucking research. Seriously. With all the garbage that people are spouting off as fact on Slashdot and being modded "insightful" for, I'll bet I could say that copyright law demands a human sacrifice for every new title put into print, and people here would believe me.

Re:Unfair Copyright Laws are Creating This

[David Rolfe]

These works should have moved into the public domain, where new artists could freely use them to create even newer works to enrich society. Instead, the content creation industry got Congress to enrich them by extending unreasonably the time of protection. Congress did not represent the people at large that day.

As a creative artist on a professional, I find that statement incredibly funny. You really have no idea of how we work, do you? You also have no idea of how copyright works - here's a hint: you CAN'T copyright an idea. You never could.

You've never heard of derivative works? We aren't talking about ideas.

I can see why you made that assumption though. I can unstand that you're biased. You believe that copyrights are rights, you've said it elsewhere. Just like any other monopolist you're of course going to feel threatened when people talk about weakening your artificial lifetime monopoly on a particular expression fixed in a tangible medium. You're only human, and humans jump to conclussions and make all sorts of irrational arguments when they're threatened. (Hence, the hyperbole and accusations of groupthink.)

Don't fret, people will still like writers and musicians even when we don't have lifetime monopolies. You'd still write if you only had to renew your copyrights every 28 years, right, like everyone that was writing 40 years ago? I bet you might have been OK with the Founders' 14 years and a 14 year renewal that protected the thousands of works between 1790 and the Berne Convention 100 years later! Good chance you could make a living at it (even with short monopolies!), like everyone else has in the past.

In my opinion the status quo is indefensible. If you're interested, see my journal, I seem to comment about this stuff frequently.

Cheers.

Re:Unfair Copyright Laws are Creating This

[Dun Malg]

Now - oh my god - somebody like me actually gets to keep the thing he creates and do with it what he will, and even leave it as a legacy for his children. How, um, reasonable. No, it's unreasonable. I install communications infrastructure. If I want to leave something for my children, I have to save my money to do so. My children can't go around to the owners of all the networks I installed and collect money after I die. I could leave them my business, but they'd still have to learn how to pull wire and then install new networks if they expect to make any money. Please, tell me why your children should get a different deal.

And none of this even addresses the root issue, that copyright doesn't exist to guarantee you a living, it exists to enrich the public domain.

Re:Unfair Copyright Laws are Creating This

[kni52]

If I hadn't posted in this thread earlier, I would mod you up.

An interesting thing I noticed about the GP is that his signature says he is "Author, the EverQuest Companion, Garwulf's Corner, Diablo: Demonsbane." Who is really going to read or pay for these 14 years in the future? How are his children supposed to profit from books about video games that are past their prime? (setting aside the "why should they?") Obviosly I am making some assumptions, but this guy might also be a little out of touch.

Re:Unfair Copyright Laws are Creating This

[Garwulf]

"You've never heard of derivative works? We aren't talking about ideas."

I've heard of them - but I think your definition of them is a bit different than mine. I've seen pros work in licensed worlds, but most of us don't actually like to do that - we prefer to do our own thing. And it's when we do our own thing that society is moved forward through artistic means, quite frankly.

"You believe that copyrights are rights, you've said it elsewhere."

They are rights. The word "right" is even in the name. You talk about it as an artificial thing, but how does that separate it from any other right?

There is NO such thing as a natural right. The animal simply does not exist. The rights we have under the Charter of Rights and Freedoms, and you have under the US Constitution (I'm guessing you're writing from the US, though - I apologize if I'm wrong), were earned, fought for, and in some cases people died for them. And there are still rights that are being struggled for - gay marriage being a prime example. All rights are artificial. It's sometimes hard for us to remember that, because we've been lucky enough to live in a place where we have an abundance of rights that we can take for granted - but there are plenty of places in the world where that isn't the case.

"Good chance you could make a living at it (even with short monopolies!), like everyone else has in the past."

Now this is where you've failed to take something into account - society changed. There's a reason that copyrights have developed the way they are (not counting the idiocy of the RIAA or the overreaction of the DMCA).

History lesson time - up until about the 15th century, human societies tended to have no concept of copyright. So why did things change after the printing press?

Well, there are a couple of reasons for this. Before the 15th century, you certainly had writers, and you had people composing literature - but you tended to lack two things:

1. A literate society where the common person could read the literature (in short, societies had oral cultures).

2. A means of mass producing the literature (in the Roman period, you had scribes and copyists, in the Middle Ages, you had books reproduced by monks).

Now, there are a couple of implications here, particularly on the composition side. If you have a society that is only semi-literate, then the people who can write literature are people who don't need to worry about keeping a roof over their heads in the first place. If they can read and write, it means they could afford an education - perhaps it was in a monastery, but the monastery would take care of them. So, when Geoffrey Chaucer wrote his Canterbury Tales, he was writing for a very small readership that was very wealthy, and he himself was nobility (as I recall, at one point he was a diplomat for the English Crown).

Let's say you did have a concept of copyright prior to the printing press, though, and somebody wanted to pirate Chaucer - well, in order to do this they have to get the vellum, and then copy it out by hand, word for word. Perhaps about a month later, they'd have a copy they could sell elsewhere. At the same time, let's say they wanted to do another form of infringement - attaching their name to it. Well, again, they'd have to copy it, and then put their own name to it, but who would notice? For that to be a benefit, there has to be a literate society. The concept of copyright didn't exist because it didn't need to.

Fast forward to the printing press. Now you have a means of mass producing literature. And, because you can now mass produce literature, books are less expensive, and you can get them into the homes of the common person, and so now you can have widespread literacy. The playing field is changing.

So, let's look at what John Caxton, one of the first English publishers (and the man who published the Morte D'arthur), is dealing with. There is something of a free market economy - he's part of the rising middle clas

Re:Unfair Copyright Laws are Creating This

[Garwulf]

"An interesting thing I noticed about the GP is that his signature says he is "Author, the EverQuest Companion, Garwulf's Corner, Diablo: Demonsbane." Who is really going to read or pay for these 14 years in the future?"

How is this relevant to the discussion? I'm talking theory of copyright - I can't help noticing that you're not actually talking about that.

Re:Unfair Copyright Laws are Creating This

[Garwulf]

"No, it's unreasonable. I install communications infrastructure. If I want to leave something for my children, I have to save my money to do so. My children can't go around to the owners of all the networks I installed and collect money after I die. I could leave them my business, but they'd still have to learn how to pull wire and then install new networks if they expect to make any money. Please, tell me why your children should get a different deal."

Well, try this one on for size - I DON'T install communications infrastructure. I create things. The two are not equal.

Now, let's try a comparison that actually has some merit, shall we? Let's say that you make chairs by hand. And they're really good chairs - chairs that people pay top dollar for. Chairs that make your ass celebrate that you use it for sitting. Now, let's say that when you die, you've made a dozen chairs that haven't been sold to anybody yet. Would you not want to leave those chairs for your children?

I create stories and books - and I'm at the very beginning of a career that will hopefully last another forty years at least. You may not call what I create tangible, but a lot of people disagree with you, myself included, and as somebody who actually does create things, I think I'd know a bit more than you would about how tangible they are. So I have something I have created, with my own fingers, to pass on. You, on the other hand, with your installations of communications infrastructure, do not. Perhaps if you owned a company that made wiring for communications infrastructure, your children would get a different deal.

Does that answer your question?

"And none of this even addresses the root issue, that copyright doesn't exist to guarantee you a living"

Odd - I've said again and again that copyright doesn't do that at all - it just guarantees me the right to try, if I so choose. Please get it right next time you try to shoot me down.

Re:Authority- WHICH PRESIDENT?

[Nom du Keyboard]

It must be the best - the President went there!

Which President? Not either Bush. Not Kerry, who wanted to be President. Not either Clinton.

Oh, do you mean the President of Microsoft? Yes, but he dropped out.

Re:About Time

[edward2020]

I think that of any university in the country, Harvard would be the one that could easily afford the legal bill. What with the free legal work from law students and profesors and their $25 billion endowment, I wonder if the RIAA can afford to sue them.

Re:About Time

[Dun Malg]

Imagine, Harvard, a non-accredited school. There's not a snowball's chance in hell of that. You don't seem to understand how accreditation works, particularly with regard to highly prestigious schools. It's essentially a "Mexican standoff". Accreditation is not done by any state entity. It's not like a health department rating for a restaurant, but more like ratings by food critics. There exist many accreditation associations, some better than others. Institutions of higher education are judged on whether they're accredited by an association that's considered reputable. But by the same token, accreditation associations are judged by which schools they list as "accredited". Any accreditation association idiotic enough to boot fucking HARVARD over a non-educational issue is just asking to be laughed down to the bottom of the list, where the faux-associations that accredit diploma mills live.

Harvard's policy

[Anonymous Coward]

It is Harvard's policy that when they get a legal notice from a copyright holder, they forward it to the infringing network user, warning that user that a second infraction will result in network privilige termination. They do not however pass on the information to the copyright holder. In other words, Harvard protects its students from litigation, but they won't hesitate to cut off one's internet access. As an undergrad who has gotten one such letter, I can safely say that they do their best to scare the pants off you. Here is what their notice looks like:

Copyright Violation
Incident No:
MAC Address:
DMCA Ref No:

Harvard University has received a legal notice from *** alleging that copyrighted material was transmitted from your computer through the Harvard network. This is a serious allegation; the transmission may be a violation of federal copyright law and Harvard policy. Please see: www.dmca.harvard.edu/copyright_policy.php

The legal notice contained the following information:

IP address:
Date and time of transmission:
Copyrighted material transmitted:

Our network logs indicate that the IP address was assigned at the identified date and time either to your computer or to a computer you were logged into.

If you believe that your transmission was not a copyright violation, was the result of a security compromise on your computer, or that you are otherwise not responsible, please respond promptly with an explanation. We will assume that you transmitted the copyrighted material identified above in violation of the copyright laws if we do not hear from you within five business days. If you have been using your network access to download, copy or distribute copyrighted material in violation of the copyright laws, as is possible using peer-to-peer file sharing programs, you must cease and desist immediately.

You should be aware that federal copyright law permits copyright owners to file lawsuits against alleged infringers for monetary damages and permits the government to file criminal charges in certain cases of willful infringement. In appropriate circumstances, Harvard will terminate the network access of users who are found to have repeatedly infringed the copyrights of others. We will terminate your network access if we receive any future notice that you have again violated the copyright laws, unless you promptly demonstrate that you are not at fault. You will be responsible for dealing with the burden that loss of your network access may impose on your ability to fulfill academic requirements.

Additional information about copyright law and relevant Harvard policies is available at: www.dmca.harvard.edu/faqs.php

Computer Security Group FAS Computer Services
Harvard University Cambridge, Massachusetts

compusec@fas.harvard.edu

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Re:Harvard's policy

[NewYorkCountryLawyer]

Thanks, AC. Very informative.

Well that tells us what they will do with normal DMCA takedown notices, which is pretty well spelled out by law.

We have no idea what they will do
-if they receive RIAA's "early settlement" collection letters, or
-about the RIAA's bringing "ex parte" proceedings against its students as "John Does".

Hopefully the school will heed Prof. Nesson's clarion call, and protect the students' due process rights.

Of course...

[MrTrenton]

anyone that is even somewhat competent realizes what a scam cd's are...18$ for about 5 or 6 songs that are good on a cd that has 10 or 12 tracks??? That is insane. Especially since you can't listen to more than a 30 second sample of the tracks so you don't really know what you're buying...even if it is a 'legit' paid for download. I mean, how many cd's do you have that you like EVERY SINGLE SONG on the album??? I have about 3 out of 14 or so...absolutely rediculous. It's no wonder why unrestricted free music has such an appeal...especially to those poor college students (like myself).

Re:Of course...

[ral8158]

Find good artists? Get higher standards?
Every CD I've gotten in the last five or so years has had at most one or two bad songs. I'm a gay male who listens to various j-pop artists, musical soundtracks, and quite a few hip-hop and dance composers.

Re:Of course...

[pho3nixtar]

It's no wonder why unrestricted free music has such an appeal...especially to those poor college students (like myself). Since when did it become an inalienable right to music for free that it took others their time and effort to create? I don't want to hear some lame ass excuse about how you're only paying for 5 or 6 good tracks, when the rest are crap. If you're really that conscientious about the music you listen to, then I doubt that there are many fillers on any of the albums you'd buy... unless you just happen to like Britney Spears or Sum 41, I dunno...

Anyway, I don't care how badly the RIAA is gouging the musicians. You're worse than the RIAA because the musicians don't get ANY money (either literally or figuratively) when you're ripping them off.

Re:Of course...

[MrTrenton]

Well I support the bands I like by buying merchandise from their websites...they get ALL the profit from that purchase and promotion. I will continue to pirate until all the profits from CDs go to those bands and I don't have to waste money on filler tracks or on other crappy tracks on the album. Creativity and quality of music is the laissez-faire of this market as far as I'm concerned.

Re:Of course...

[pho3nixtar]

Well I support the bands I like by buying merchandise from their websites...they get ALL the profit from that purchase and promotion. First of all, I think this response here is just for the sake of winning the argument. I don't really believe that you support bands by buying their t-shirts, hats or whatnot. And no, they don't get ALL the profit from those sales because they have to pay the t-shirt manufacturers, etc.

You have to pay someone in order to distribute your product, unless you know how to do it yourself. That includes both the t-shirt makers AND the record labels. The internet is making it easier for bands to distribute their music, but it is also making it easier for people who like to rip them off. But in the end, their music is their merchandise. It's the centerpiece of all their merchandise. Without it, you would never even have the opportunity to buy their other merchandise.

I will continue to pirate until all the profits from CDs go to those bands and I don't have to waste money on filler tracks or on other crappy tracks on the album. Creativity and quality of music is the laissez-faire of this market as far as I'm concerned. Well, here's a question for you. What makes you think that, if those bands receive "all" of the profits from the sale of a cd, that they will cease to record filler or crappy tracks?

Creativity and quality of music really has little to do with this. You'll continue to pirate music, even IF "all" (and I'd like to see you qualify the word "all") of the profit goes to the band. Why? Because it's just easier on your wallet that way.

Footing the Bill..

[lionchild]

And you should be sending the RIAA a bill when they request documentation about who was connected to what IP when.

If the records office charges fees for copying records, why wouldn't they charge for their time and effort when other information rquests come in?

Re:Rule 11 or Rule 37

[NewYorkCountryLawyer]

Well I don't know, but I do know that in Capitol v. Foster the judge concluded that their case against Debbie Foster was "marginal" and "untested" and is slamming them with what I expect to be a pretty big attorneys fees award.

You've got to remember, we're very early in the game....It is only recently that the real fighting back began, and court cases take time.

I expect we'll be seeing Rule 11 sanctions against them down the road....

Re:"Defenseless" is no excuse for infringement

[NewYorkCountryLawyer]

Excellent post, grimJester. I hope it gets modded to +5.

Re:"Defenseless" is no excuse for infringement

[NewYorkCountryLawyer]

Excellent post, DamnStupidElf.

You're disagreeing with me by agreeing with me...

[Garwulf]

Well, frankly, your tone is very inflammatory. Your post suggests that you're the type of person who would have no difficulties with a tyranny of the masses (I don't know if this is the case or not, but you're talking about taking people's rights away, and however you spin it, you're still talking about taking people's rights away).

However, I find this quite funny, because I can't really disagree with the content of your post - because it's pretty much exactly what I said. My words were: "If you think about it, it's simple, covers all the bases, allows for everything from Creative Commons to the Open Source movement to a novelist receiving royalties in any media - and has been around in its current form since the 1970s. I wouldn't call it a broken tool at all. I just wish people would stop panicking because there's a new shiny thing and coming up with daft measures (Vista-style DRM anybody?) to protect against it."

And your words were: "Copyright is an artificial bounty that society has granted to some of its members, but the cost to society of enforcing that bounty has dramatically increased in recent years."

One of these things is very much like the other.

Out of curiosity, did you read all of my post? And have you ever actually read the Berne Convention?

Re:Authority- WHICH PRESIDENT?

[dbIII]

He has an MBA from there - he left military service six months early to start it. It has been reported widely.

RIAA has unviable bussiness

[Dan541]

I wish the recording industry would just accept that the DONT have a viable business model.

Might as well stand on a street corner offering to polish peoples shoes.

Re:"Defenseless" is no excuse for infringement

[frdmfghtr]

You presuppose that they are guilty, which is not the way the law works. Innocent until proven guilty, and these students have not been proven guilty. In addition, they have a right to defend themselves regardless of whether they are innocent or guilty. As things stand, they don't have the resources to defend themselves. The professor is proposing that they be given the resources to do so.

I didn't read it as such (maybe a function of the early morning hour when I posted); I read the professor's comment as "They shouldn't be taken to court or held responsible for their actions because they are poor and can't defend themselves." THAT'S the part I find objectionable.

Re:"Defenseless" is no excuse for infringement

[frdmfghtr]

You'd think so, but the MAFIAA has also been threatening people without computers, dead people, and small children. There's really no evidence that any of the threats they've sent would stand up in a trial, since so far the cases that have gone to trial are going rather poorly for the MAFIAA.

I would think so...but I also have a problem of thinking in terms of an ideal world and simple logic; I make the mistake of assuming that maybe, possibly, despite the repeated stories on /. about suits with pathetic excuses for evidence, that maybe, just MAYBE, there are a few suits where there is solid evidence that don't make the front page. Those are the cases that I have in mind when I talk about "not violating copyright and you're OK."

I wonder, out of curiosity, how many of the RIAA lawsuits are justified and based on substantial evidence? There's got to be at least a few, doesn't there?

Re:"Defenseless" is no excuse for infringement

[NewYorkCountryLawyer]

Answer: none.

They're all based on the same fake, flawed "investigation".

See, e.g. deposition of RIAA's "expert" witness.

Basically, an "investigator" operates a pretext Kazaa (or other Fast Track) account... finds a 'screenshot' with titles of copyrighted songs... finds out the dynamic IP address... subpoenas the ISP to find out who paid for the internet access account that had that dynamic IP address at the date and time he made the screenshot... accepts the answer of the ISP... and sues the person who paid for that internet access.

Publications

[Fuzzums]

Funny. Why is it then that I hardly ever (read never) find any scientific papers about the latest Robby CD or Spidernam III???

Respect for the creator's wishes for their work???

[hadaso]

The main flaw with the Berne convention as I see it is that in almost all cases it does not respect for the creator's wishes for their work. By default it makes every work uncopiable unless explicitly licensed by the author, and it doesn't provide any means of locating the author. Almost all content on the web was posted by authors who don't expect to make money by selling their content, who don't care about their content being copied (at least when proper attribution is made) and usually prefer that their ideas be diseminated this way. Most of who posts on the web is not reachable to give explicit permision, and if reachable now will not be reachable by the same means next year (say when they abandon their old email address in favor of a new spam-free one).

The first thing that needs to change is that there should be a requirement that legal protection for copyright holders should be restricted for those who claimed they want such protection in advance, before they can claim infringement, in a standard way that could be used by the accused infringer to check and know that there are restrictions on use. Such a standard way should also require that any proted work be made available in a way that allows fair use, or at least allows the passage of the work to the public domain when time comes (i.e., there should not be legal protection for works diseminated only in a way that prevents access after the work has legally entered the public domain).

In a world where most published work was not meant by the content creators to be restricted, the law should not restrict it by default. If anyone wishes to control their work, they should state so. It is not difficult.
-----
License:
I am the copyright holder of this post.
I wish to retain my rights to this post.
As the copyright holder of this post I hereby explicitly grant the permision to anyone who so wishes to copy all of part of this post and to include it in their work.
This notice would hold until 70 years after I cease to be alive, and after that time this post will pass into the public domain regardless of any changes in copyright laws.
If in doubt consult my death certificate if you are able to find it. If you cannot find it assume I am alive and well.

Lehrer said it first

[hicksw]

Fight fiercely, Harvard! -- T Lehrer

Re:Respect for the creator's wishes for their work

[Garwulf]

Well, that's an interesting way of looking at it, but I'm afraid I can't agree, simply because reality doesn't really reflect what you've said.

"The main flaw with the Berne convention as I see it is that in almost all cases it does not respect for the creator's wishes for their work. By default it makes every work uncopiable unless explicitly licensed by the author, and it doesn't provide any means of locating the author."

Well, that's really not the issue you make it out to be for a couple of reasons:

1. The work starts out in the hands of the creator, so the creator has to make a decision about how to distribute it - and copyright law allows him/her to distribute it however s/he wishes. It can't be copied without permission for a very good reason - preventing a publisher from shafting the creator upon submission by taking the work and publishing it behind the creator's back. But, the first thing a creator has to do is decide what kind of publication s/he wants, so your issue is a, well, non-issue. The creator's wishes are respected from the get-go.

2. It is not the place of copyright law to provide a means of locating the author - that's the author's responsibility. Any law creates a legal framework for people to move around in, but it does not do everything for them. Laws against theft don't hold burglars by the hand and prevent them from robbing your house - they allow you to do something about the theft after the fact. It's still your responsibility to lock your doors at night. That being said, any author who is professional about what they do makes a point of keeping their publishers up to date about their whereabouts, so it really isn't an issue. If you want to reprint an author's work and need permission, they aren't that hard to find.

"Almost all content on the web was posted by authors who don't expect to make money by selling their content, who don't care about their content being copied (at least when proper attribution is made) and usually prefer that their ideas be diseminated this way."

Um...that may be true for some, but certainly not for all, and there are lots of major sites where the content is written by people who are paid to do it. And that's not counting the sites that bring in a revenue from advertising, or are subscription-based.

"Most of who posts on the web is not reachable to give explicit permision, and if reachable now will not be reachable by the same means next year (say when they abandon their old email address in favor of a new spam-free one)."

Actually, my experience with browsing the web has been exactly the opposite - the major sites have current contact information, and I would say that current contact information is much more the norm than the exception.

"The first thing that needs to change is that there should be a requirement that legal protection for copyright holders should be restricted for those who claimed they want such protection in advance, before they can claim infringement, in a standard way that could be used by the accused infringer to check and know that there are restrictions on use."

Okay - so let me get this straight - you're suggesting that in order to protect the creator's wishes, the first thing you need to do is take away their legal rights towards their work unless they opt in to it. Somehow, if you were talking about free speech, I don't think anybody would take too kindly to that philosophy. The beauty of copyright under the Berne Convention is that any author can distribute their work however they want - mainstream publication, Creative Commons, etc. - it is up to them from the get-go. You're talking about adding a completely unnecessary step - particularly since the work starts in the creator's hands in the first place. Simple is better, when it comes down to it.

Re:You're disagreeing with me by agreeing with me.

[Megaport]

Well, frankly, your tone is very inflammatory. Your post suggests that you're the type of person who would have no difficulties with a tyranny of the masses (I don't know if this is the case or not, but you're talking about taking people's rights away, and however you spin it, you're still talking about taking people's rights away).

Oh dear, you're looking at a libertarian and seeing a communist. No my friend, I am not advocating taking away your right to societal protection of your intellectual property, simply because you have no such right to begin with.

Over the centuries, philosopher's saints and poets have contemplated the nature of our existence. Many have come to the view that the human person has a natural dignity that retains numerous rights that are deserving of protection. If you are an American, you would no doubt be familiar with one of the best formulations, "life, liberty and the pursuit of happiness."

During all that time not one of these philosophers, saints or poets has ever argued that there is a natural right to human intellectual property. Sorry. And don't think that it is because they ignored the notion of property all together either, because they didn't. Simply no-one until recent times has ever considered ideas to be commercially tradable property deserving of police protection.

The "shiny new thing" that you mock in the OP is, ironically, better attributed to the Berne convention itself! The world has been awash with copyrightable works through all of recorded human history, and only recently has anyone decided that ideas can be owned.

If you have decided that you will only perform creative acts in exchange for societal protection, then good riddance to you when we end that protection. I'm hoping that the fellows in charge of the hollywood popcorn factories go with you too.

-M

Re:You're disagreeing with me by agreeing with me.

[Garwulf]

"Oh dear, you're looking at a libertarian and seeing a communist."

"...simply because you have no such right to begin with."

Ugh...please, stop misusing words. Seriously. I've known people who grew up in communist countries. Believe me, when I read your posts I see an uninformed, spoiled anarchist. Not a communist. You can take my word for that. And I know what the words actually mean.

As for not having the rights in the first place, you are absolutely wrong. Sticking your head in the sand and pretending that copyright isn't there or declaring that it shouldn't be there isn't going to make it go away. I DO have those rights - the law grants them to me. Just as the law grants you the right of free speech and freedom of travel. ALL rights are artificial. Unfortunately, you're living in a society that has had these rights and freedoms for long enough that you've forgotten that somebody had to fight and die for them. When was the last time you had to defend one of your rights?

Frankly, you're spoiled. We all are to some degree. It's a lot easier to talk about taking somebody's rights or legal protections away when you've never had that done to yourself, or to a family member. But, to take an American example, take a close look at Gitmo. A really close look. Look at all of those people being held without trial, and being mistreated. And then tell me about their natural rights. Seems to me it was really fucking easy to take their rights away. And once you've taken a look at that situation, and seen just how artificial rights truly are, perhaps then you'll realize just precious they are when we do have them. And perhaps then you'll understand just why it is that I fight tooth and nail for mine.

Oh, and by the way, as I've said a number of different times, you CAN'T copyright an idea. You never could. Ownership of an idea is PATENT LAW - try to get it right next time.

Re:You're disagreeing with me by agreeing with me.

[Megaport]

Ugh...please, stop misusing words. Seriously. I've known people who grew up in communist countries. Believe me, when I read your posts I see an uninformed, spoiled anarchist. Not a communist. You can take my word for that. And I know what the words actually mean.

Ahh, now I begin to see where our points of view diverge. We appear to have a disagreement at a much more fundamental level.

As for not having the rights in the first place, you are absolutely wrong. Sticking your head in the sand and pretending that copyright isn't there or declaring that it shouldn't be there isn't going to make it go away. I DO have those rights - the law grants them to me. Just as the law grants you the right of free speech and freedom of travel. ALL rights are artificial. Unfortunately, you're living in a society that has had these rights and freedoms for long enough that you've forgotten that somebody had to fight and die for them. When was the last time you had to defend one of your rights?

You see, I do not believe that all of my rights are artificial. I believe that many are fundamental to my status as a human person. These rights I will fight and die for. Unlike yourself, I will not kill other humans to protect rights that are merely granted to me as a boon by my society.

You say that there is some level of comparison between my 'right' to have the police chase down and arrest people who make unlicensed copies of my fiddle playing, and my Right to Freedom and Self Determination as a person.

I see no link, and I will not fight and die over the fiddle playing. I also won't do it over my right to use oil in my SUV or any of the other 'rights' you believe that you have. Please don't shoot at my children if my country decides to tell your country where to shove it's copyright treaty, OK? Feel free to shoot at us if we hold your citizens without trial like the USA does to ours.

Indeed, I find it unfortunate that you would invoke the honor of my memories for those who have fallen in battle in defense of our _natural_ rights. If you think that they also believed that all rights are artificial, why do you think they died for them? I put it to you that these men and women overwhelmingly believed that the rights they were fighting for were given to them by God, and not by man. If your next post breaks Goodwin's law and calls me a Nazi, then I will not reply any further.

-M

Re:You're disagreeing with me by agreeing with me.

[Garwulf]

"We appear to have a disagreement at a much more fundamental level."

The difference is that my point of view is backed up by reality and history.

"Unlike yourself, I will not kill other humans to protect rights that are merely granted to me as a boon by my society."

Well, I've been called a greedy monopolist, but this is the first time I've ever been called a murderer. I have nothing more to say to you. Don't bother to reply - I'm not going to bother reading it.