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Court Finds Part of Copyright Act Unconstitutional
I Don't Believe in Imaginary Property writes "A US District Court in the Southern District of California has found the Copyright Remedy Clarification Act to be unconstitutional. That act is what removes the sovereign immunity for infringement that state workers have in their official capacity, something many argued would jeopardize universities with liability for faculty infringement, not to mention other state agencies. In a rather dense legal ruling (PDF), the Court found that the Clarification Act was not a valid exercise of congressional power under the 14th Amendment. For those of you who have absolutely no idea what I just said, I recommend either being glad that a small piece of copyright law may soon bite the dust, or hoping that NYCL will explain this better."
what it means? You should have submitted it to "Ask Slashdot".
Ray Beckerman +5 Insightful
was passed with the intent to subject States to liability for copyright infringement. The CRCA amended 17 U.S.C. 511(a):
Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State [...] shall not be immune, under the Eleventh Amendment [...] from suite in Federal Court [...] for a violation of any of the exclusive rights of a copyright owner.
So this ruling basically says you can't sue the state for violating your copyright.
How we know is more important than what we know.
And government decides it doesn't have to follow the laws. What next, candidate kisses baby, sun rises in East?
I am glad that this happen, not sure exactly why, but the 14th amendment helped free the slaves so it can't be all bad.
I have no idea what you are saying.
That's pretty much my take on it. So now I wonder if the Federal Government has given up it's own protection from infringement?
;-)
Oh, and I should mention one other thing lest you think the Court let them off the hook: they can still sue whoever it was that allegedly infringed upon their precious report by rewriting bits of it, but that person has no money to speak of.
Sorry to call you out like that, NYCL, but I thought you would have a better handle on it. Next time, I'll have to get my legal advice from Ask Slashdot, just like you said
- I Don't Believe in Imaginary Property
The first article linked to sounds to me like if a state employee violates copyright as part of his job, the state can't be sued but will fire the employee who can *then* be sued. Sucks to be that employee...
Edward Burr
Having a smoking section in a restaurant is like having a peeing section in a swimming pool.
What's the difference between a country lawyer and a rural juror? The urban fervor?
Get thee glass eyes, and, like a scurvy politician, seem to see things thou dost not.--King Lear
The USA is a conglomerate of separate and independent governments. Each state has its own government that co-exists with the federal government. The federal government is a government of limited powers. It has only the powers that the states gave it when those states ratified the Constitution. The 11th Amendment to the Constitution specifies that states cannot be compelled to defend suits in federal courts.
States, as independent sovereigns with their own governments, enjoy sovereign immunity. No one can take legal action against a sovereign unless the sovereign gives permission to do so. Various Tort Claims acts allow those injured by states to sue the states to recover damages.
The US Constitution was amended in the 19th century to include the 14th Amendment as a response to slavery and its vestiges. Specifically, the 14th Amendment makes the Bill of Rights (the 1st 10 amendments to the Constitution) specifically applicable to the states and allows the federal government to create legislation that abrogates sovereign immunity of the states if, and to the extent, necessary to abolish the vestiges of slavery. Title VII of the Civil Rights Act of 1964 was enacted using Congress's powers under the 14th Amendment.
Therefore, what I presume the Court's ruling held is that Congress could not abrogate sovereign immunity of the states for copyright infringement because such infringement is not one of the vestiges of slavery. Also, I suspect that there is probably some discussion of states' immunity from suit in federal courts for copyright infringement. Since copyright infringement is a claim that can only be brought in federal court, you can see how a state could infringe at will by refusing to permit itself to be sued in federal court on a claim that is impossible to bring instate courts.
Laws affecting technology will always be bad until enough techies become lawyers.
So long as a public official is fulfilling the duties of his office and not breaking any laws, he cannot be sued for copyright violations. If he does break a law, then he can be stripped of his position, the 11th amendment protection, and be sued. (Paraphrased from the first article)
Obligatory: IANAL.
The way I read this (and I'm a lawyer) through official action, a state can now, willy-nilly, appropriate intellectual property with immunity.
I don't see that as a good thing at all. It doesn't hurt the RIAA, it hurts everyone who does business with a state that involves any kind of IP....
As a soon-to-be-attorney, and someone from whom family and friends are constantly trying to wring legal advice, your comment put a big grin on my face.
Don't pop the cork on that bubbly yet. This may not survive an appeal. Even if the nutty 9th upheld this one, the SCOTUS would definitely want to take a stab at it as well (and they would almost certainly reverse this).
Why would you want this anyway? Do you really want the government to have the right to steal your work?
Go ahead... flame me. I think that Intellectual Property rights are important.
Opinionated Law Student Strikes Again!
Now I know that the parent post is definitely a terrible, off topic troll of a post.. but it is also incredibly hilarious when you consider the fact that he probably typed this all out ahead of time, and then constantly reloaded slashdot in an attempt to get a horribly graphic account of shit eating to be the "frist psot" of a story.
Now, could somebody PLEASE mod parent funny? For me?
The state creates one set of rules for itself, and another for everyone else. How is this a good thing?
OK: I'm a 2L at a law school ranked in the US snooze & world reports top 20. But more importantly I'm in Fed Courts and have my final in less than 2 weeks. This case has NOTHING to do with copyrights whatsoever. It instead involves an insanely complex topic called "state sovereign immunity". What I am about to say is hopefully accurate, but is by no mean a deep analysis of sovereign immunity doctrine. Many scholars actually think (and I agree) that the Supreme Court has massively overconstitutionalized Sovereign Immunity doctrine and that it should be much more rooted in common law which would allow Congress more flexilibility in abrogating it in some circumstances. Before going any further: This ONLY applies to dragging a state into a FEDERAL court, the state court systems have their own sovereign immunity that can be different:
What is state sovereign immunity? An ancient concept that basically says "you can't sue the state unless the state gives you permission to do so". It goes all the way back to the days of Kings, and was imported into the US too. In the Constitution the states have sovereign immunity from 1. a basic "postulate" of the structure of the constitution (this is extremely fuzzy and not well defined) and 2. The 11th amendment which ONLY created sovereign immunity in diversity actions (correcting a blunder put into the original Article III language). Now, there are still plenty of times that you CAN sue a state, the courts have carved out an exception for suing a named state official, and doing so only for future prospective relief (like I want the state to stop harming me, but I can't sue to collect big money from the state).
So you might say: What about all my rights, can the state get away with everything? The answer is no. It is possible for Congress to (in limited circumstances) abrogate or take away state sovereign immunity. The problem comes from the above "postulates": State sovereign immunity is INHERENT to the Constitution (not just to common law which would be easy for Congress to override with legislation). Think of this in programming terms: In the ORIGINAL base class (constitution) there is no real way for Congress to abrogate sovereign immunity unless there is an express exception in the base class itself. However, when the 14th amendment came along LATER and amended the constitution (think of the constitution as a new inherited class with slightly different properties) it DID give Congress a window to (sometimes) abrogate a State's sovereign immunity.
To abrogate you need 2 things that the Court in this case found lacking: 1. Congress has to very clearly state in statutory language that it is abrogating state sovereign immunity (not every bill relating to the 14th amendment abrogates, section 1983 of the civil rights act is a notable case); 2. (and this is where the act failed): The right granted has to PROPERLY be rooted in the 14th amendment section 5 grant of power to Congress. This law was not rooted in the 14th amendment even if Congress said it was. The Copryight power has nothing to do with the 14th amendment. There is one exception in the original Constitution that Courts have recognized, and that is the bankruptcy power (which has some funky text associated with it in ARt I), aside from that the Court has basically held that state sovereign immunity could be abrogated for bankruptcy).
Why have all this sovereign immunity? Well there are good reasons for it, the biggest one being that it would be way too easy to sue the states for petty money in federal courts. It should be no surprise that abrogation came with the 14th amendment which was passed after the Civil War when the trust of the states was at an all time low. Remember: In a federal democracy like the U.S. the states DO have trust and sovereignty, but not absolute sovereignty, and the level of trust they get has gone up & down over the years.
Now
AntiFA: An abbreviation for Anti First Amendment.
Yeah fuck the GPL. It's a piece of shit that is viral and likes to screw over companies who are trying to make a profit. These same companies employee the largest percentage of the work force, and the viral GPL comes along and makes these hardworking companies in America and the rest of the world give up their competitive advantage. I think Stallman is nothing but a lousy hobo who can't seem to stop living in the 60s.
... having a coherent argument backed by a few actual facts would help.
You're a remarkably uninformed example of a Slashdot troll. Try harder next time
The higher the technology, the sharper that two-edged sword.
Why do I get the feeling this is one of those stories where TFA doesn't say what the poster thinks it says? Yep. Confirmed. I knew it before I even read the comments.
Granted that certain recent portions of copyright law, like the recent addition mentioned in TFA, and (most definitely) DMCA are outrageous and abusive.
But that does NOT mean that "copyright law", in general, is bad. It is not. It is essential to the healthy functioning of a free society. In fact, if you read the Constitution, you will see that the abilities to copyright and patent were expressly provided for in order to further the general public good.
If you read your history, you will see why this is so. Artists (including authors and other writers) and inventors must be encouraged, which means they must gain from their works... to a certain degree. Societies in which citizens did not gain from their own original works, in other words societies that put all such works immediately into the public domain, have never prospered.
On the other hand, copyrights were never intended to be all-inclusive or to last forever, which has been the recent abusive and destructive trend.
Just keep in mind that abuse of a concept does not mean that the concept is bad. It just means that just like most other concepts, it can be abused by bad people.
Nice exposition. One further detail: a state can be sued in state court for violation of its own constitution.
That troll has been around longer than I have (which isn't saying much, but I digress). It's probably a text file in his "My Documents" folder.
Oh honey look... How cute... an angry slashdotter!
Actually, it does, albeit somewhat tangentally. Copyright is an exclusively federal cause of action. 28 U.S.C. sec. 1338(a). If not for that twist, the "tort" of copyright infringement would likely fall under most states' Tort Claims acts and authors of copyrightable works would not be left without a remedy for infringement by states (or hoping against hope for a waiver of 11th Amendment immunity).
Good luck on your Fed Courts exam. I have found that my Fed Courts class was far and away the most valuable class I took in law school. And by the way -- everyone knows there are 25 law schools in the top 20.
Laws affecting technology will always be bad until enough techies become lawyers.
"But as our resident high profile copyright lawyer..." In case you haven't been watching Ray's blog, it has been a VERY busy week, and he has evidently been doing not only the typical lawyer hours, but keeping up with a dozen or so RIAA cases, answering emails, and saving western civilization from what appears to be an increasingly out of control Richard Gabriel. Let him have Sunday evening off.
Ok, screw. You KNOW that it is a troll. Why bother talking to it?
Yay, I finally have a legal excuse to run my bittorent client loaded up with warez and movie screeners 24/7. I just need to find a state job in California, and leech "within my official capacity."
Is it just me or does all this legal mumbo-jumbo seem so very pointless?
This would have gone over better if it were a car analogy...
Here, let me try: "Think of this in car terms: In the engine computer program's original base class (constitution) ..."
Use 'slashdot stuff' in the subject line in any email you send me if you want to get past the spam filter.
Linux doesn't have an EULA. The GPL only applies to _copies_ of the software that you might make (including derivative works, which fall under the jurisdiction of copyright anyways), not how you use the software once you have it.
File under 'M' for 'Manic ranting'
First of all, this ruling was handed down two months ago, so I'm not sure why it's being discussed now. But second, the Fifth Circuit struck down exactly the same part of the same law in 2000. See Chavez v. Arte Publico Press, 204 F.3d 601 (5th Cir. 2000). Though it hasn't made it to the Supreme Court and the Fifth Circuit is the only federal appellate court to consider the issue, no court will allow Congress to abrogate state sovereign immunity under its Art. I powers. And Copyright is not a Fourteenth Amendment issue, so there's just no way to do this. This really isn't a big deal.
First this is just a motion to dismiss in a district court - talk to me if the 9th Circuit Court of Appeals gets it.
This opinion is about sovereign immunity, the legal theory that states cannot be sued. For all the Federalists in the room this may be a good deal. For those that would like to see less protection for intellectual property - this isn't your decision.
Sovereign Immunity has actually created state funded patent trolls. California schools are financially exploiting patent law by patenting technology and enforcing patents vigorously. When the schools are themselves sued, they raise sovereign immunity. See Critics Take Aim at California's Patent Shield The Wall Street Journal November 13, 2007 Tuesday, B1
Sorry, no link, I had to pull this off Lexis.
I haven't researched this theory but this holding may have little effect, intellectual property can be "taken" for purposes of the Fourteenth Amendment. See Ruckelhaus v. Monsanto, 467 U.S. 986, 1001 (1984). Sovereign Immunity is not a shield to a takings claim.
Why have 1 person driving a backhoe when you could employ 20 with shovels?
IANAL, but actually, there is a link between this and the RIAA's war on piracy, though it's a bit thin. To be more exact, had this gone the other way, it could have been a tool in the RIAA's legal arsenal.
You may not remember, but the RIAA has been after universities (there are plenty of Slashdot stories on that topic). Follow that by the fact that state universities are parts of the state, which are immunized by this ruling. Yes, it appears to allow them to still sue INDIVIDUALS (through more convoluted means), but they can't go after the state, which has all the money.
Instead, the RIAA has been going after university funding by threatening the funding of any institution that doesn't promise to do things like RIAA copyright 'education', or buying their crappy music services which they then force the students to use.
So it's a weak link, but it's still something that could be important.
> Why would you want this anyway? Do you really want the government to have the right to steal your work?
It's not that simple. They CAN still sue the individual responsible, per my understanding (IANAL, but it's discussed in TFA).
They just can't get lots of money from the state, now. They also appear to have been trying to copyright mere ideas, but that's another can of worms.
So, IMHO, it's a good ruling and good law, because it's not like the states have been authorizing infringement to begin with, and the state shouldn't necessarily be held responsible for what employees do on their own. I don't want to have $222k rulings like the one the RIAA got from Tanya Anderson come out of my tax money because someone in the state government actually infringed something. If anything, they should pay (assuming they actually infringed to begin with, of course--I do not believe Tanya Anderson infringed).
And there's the matter of the RIAA's war against universities over student infringement. I'd hate to see what they could do if this had gone the other way and they had found some way to combine it with other laws to hold the state universities liable for student (or even faculty) infringement.
I don't doubt that they would demand unreasonable settlements if they found the chance.
In short, that's why I think this is a good thing.
Here is a question for you though... is there constitutional authority for Congress to revoke jurisdiction of state courts?
Opinionated Law Student Strikes Again!
Pig's Arse.
I'd put it that the framers of the constitution recognised that copyright was a scam much more often than a benefit (like most Royal Warrants, Concessions and Commissions) and expressly limited it to cases where it would actually further the general public good.
-- Butlerian Jihad NOW!
As much as Copyright Law sucks, there are some parts of it that I'd be quite upset if they struck.
Fair Use to name one. Limited Immunity for ISPs (one of the few or only good things to come out of the DMCA) to name another.
GLaDOS for President 2016! "Well here we are again. It's always such a pleasure." -- GLaDOS, 2011
The Eleventh Amendment gives the states sovereign immunity in absolute terms, and it controls over any Constitutional text that preceded it. Thus, any Congressional power to limit sovereign immunity must come from an amendment that was passed AFTER the Eleventh Amendment. It cannot come from the Copyright Clause.
Arguably, the only place to look for a Congressional power to limit sovereign immunity is the 14th Amendment, section 5. This text gives Congress the power to enforce the first 4 sections of the 14th Amendment through "appropriate legislation." But any Congressional action that relies on Section 5 must be geared towards enforcing Due Process, Privileges and Immunities, Equal Protection, or some other clause of the 14th Amendment.
Essentially, the court in this case says that the purpose of the Copyright Act is not to enforce the 14th Amendment. That seems pretty obvious to me. The purpose of the Copyright Act is to enforce the Copyright Clause of the Constitution, not the rights enshrined in the 14th Amendment!
The only argument that I can think of for the other side would look to the Due Process clause of the 14th Amendment. The 14th requires that states not take a person's life, liberty, or property without due process of law. So the argument would go like this: 1) The state is taking a person's property when it violates someone's copyright. 2) The Copyright Act creates a due process right, in that it requires that the state allow itself to be sued for such a taking. 3) The 14th Amendment authorizes the Copyright Act's limitation on sovereign immunity, because it is an attempt to enforce a Due Process right.
But there is a fatal flaw in that argument. A violation of copyright is not a taking of property. If you violate someone's copyright, they are still the copyright holder. A copyright violation is NOT a taking of property. Without a taking of life, liberty, or property, Due Process is not required, and the 14th Amendment is not implicated.
> They can only sue the individual state employee under this decision IF that employee was not acting in an official capacity.
:] IANAL, and this is a complicated mess, but that's one of the few things I'm clear on.
Yes, but the minute you do something illegal, you're outside your official capacity, so by infringing, they give up their immunity due to their position. So we're right back to "you can sue the person, but not the state" again.
The article discusses that exact point, but I don't blame anyone for missing it
I don't think you understand how making claims works (usually, one is obligated to support them, not challenge whoever challenges your assertions).
And when you say "Since you chose to challenge the claim, it is up to you to find a counterexample." I'm sorely tempted to post an ironic reply in the vein of "Anyone who says that loses the argument (it's up to you to provide a counterexample if you disagree)."
But don't get me wrong, I think that copyright is the wrong way to do the right thing, if that makes any sense. I just don't like that method of reasoning.
However, instead I would like to point to the Renaissance. It pretty well predates any real notion of copyright, and last I checked, those countries that participated did not all fall into ruin. But I suppose you'll merely tell me that most later adopted copyright?
Anyhow, I have a stone for you. It keeps tigers away...
The famous parts of the GPL deal with distribution, which is why most people say that the GPL is a "distribution license." But, there are parts which do not.
Look at section 15 and 16 of GPL v3. (They're also in v2.) These parts apply to how you use the software once you have it.
Nope. Doing anything illegal (like infringing) strips you of your personal protection because you're outside your official capacity the minute you infringe.
The state is fully protected (and our tax money, as another way to look at it), but the employee themselves is not. IANAL, but look at the strange way that lawsuit was dismissed: the one who allegedly infringed (outside of their official capacity) is the only one left to sue.
I know it's hard to read, when it dismissed the suit against the alleged infringer in their official capacity, but the article itself tells you that they're not off the hook in terms of personal liability.
no.
Anybody want my mod points?
No portion of the GPL applies to how end users must use the software. Ever. Parts 15 and 16 of GPL3 disclaim any implied warranty on the software or liability of the authors for any consequences that arise from how the software is used, but it does not make a requirement that the end users use the software in a certain way.
File under 'M' for 'Manic ranting'
These same companies employee the largest percentage of the work force
I've seem spam with better grammar.
You are being MICROattacked, from various angles, in a SOFT manner.
The GPL states in its text that you don't have to accept it to use the software, so it's impossible for it to apply to anything beyond the bounds of copyright law.
This space intentionally left blank
You don't see too much of that these days.
>Yes, but the minute you do something illegal, you're outside your official capacity.
Not necessarily. It all gets right at whether or not the state has vicarious liability. Except, unlike in private vicarious liability suits, you can't sue the employee unless the employer (the state) is not able to be reached by vicarious liability.
You can definitely commit an illegal act in the course of your official duties. Think about a bouncer kicking someone out of a bar... if his boss says, "rough him up a little," the boss is responsible for the battery claim just as much as the bouncer.
Opinionated Law Student Strikes Again!
You're a remarkably uninformed example of a Slashdot troll. Try harder next time ... having a coherent argument backed by a few actual facts would help.
:)
But then wouldn't he cease to be a a troll and just be making a reasonable argument?
IANAL, but I think that "as part of his job" or "in their official capacity" don't actually mean "DMV clerk who managed to install BitTorrent on his work PC and downloaded/redistributed every single new movie". I can't even imagine what kind of an official job would involve breaking copyright law, as part of the job description. Maybe a cop investigating a counterfeit DVD operation, but that's just about it.
At any rate, it seems to me that whether they fire you or not is kinda irrelevant. They can't sue you if your job description or assignment was to break copyright law, and they can't sue the state in any case, but that's about it. You can still be sued as a private person, if you broke the law on your own.
Same as, for example, you can't sue the state if a state employee downloads kiddie porn at work, but that employee can still be tried and sent to PMITA prison.
Now they will probably fire the bugger anyway, but that's sorta just the icing on the cake. Even if he kept the state-employed clerk job or whatever, the RIAA can still sue his arse off.
Anyway, on the whole I'm not sure what's to celebrate except as a clarification of the constitution. I suspect that the actual impact of it will range between insignificant to non-existent. As I was saying, there aren't that many jobs which involve unauthorized copying and distribution of copyrighted works. I would assume that any state or federal agencies which do need to copy or distribute (Library Of Congress, maybe?), already have very explicit legal exemptions.
A polar bear is a cartesian bear after a coordinate transform.
Or, like Richard Nixon said as an excuse for his tyrannies:
I bet that kind of defense will become increasingly popular as the current president and his regime gradually lose the secrecy of their many crimes they've spent so much time and energy (and our money) to maintain.
So no, I'm not glad that some tiny copyright rule is dead, leaving intact the rest of the ridiculous regime of artificial government monopolies on imaginary property. Since it comes at the cost of treating the state as an unlimited tyranny, not as composed of laws creating limited powers subservient and accountable to the people.
--
make install -not war
The problem is that we don't optimize properly. Treat law like a living program - one that has been hacked multiple times since deployment. You can't expect it to be the most elegant code anymore. So you write tests of the current behavior and start refactoring the code till it looks/works better.
...
... ...
:draft
:victim => [:dead, :unwilling, :sentient] :defendant => [:soldier => :legal_war]
:rank => nil # illegal-combatants, police, politicians, etc :imprisoned
Anti-gun/weapon laws. Why so many complications?
Any device for the sole or usual use of severely injuring or killing a person should be regulated in manner X, this includes but isn't limited to guns, tazers, spring knives.
Then, based on what kind of weapons we want to have, we include them based on function.
I think it'd be possible to get gun laws down to a page or two. How big does the logic tree really need to be?
I think part of the problem is that we write insanely complex laws, as if we expect that our limited viewpoint now is going to enable us to cover every possible contingency in the future. Anyways, the outcome is modified by everything from the judge's mood, and precedent, to the phase of the moon, which renders the whole thing moot more often than not.
In programming terms, the legal system as a whole, would be/suffer from:
0) putting in way too much up-front design
1) unaudited except by black-hats - fixed only in response to blatant failure
2) deploying changes to a live system
3) working without a test suit to guide implementation
4) waterfall methodology - idea -> law - through linear set of phases
5) no user stories, only seagull managers (lobbyists)
6) no follow-up studies, or metrics, no research into quality of results
7) failure to encapsulate design - inability to inherit cleanly
8) unclear naming terminology, obsolete technical references
9) Not-Invented-Here syndrome - each statute rewrites the wheel
just to name a few issues.
spec Murder
should "punish those who kill others"
a = Person.new 'Able' ; c = Person.new 'Cain'
c.murder a
c.guilt.should be_true
should "not count for cases of self defense"
should "catch murder of, and by aliens"
c.murder Person.new('Jar Jar')
c.guilt.should be_true # unfortunately
should "reduce effects of violent crime on populations"
simulate
test_population_with_law.should live_longer_than test_population_without_law
law Murder
version =>
include Requires::Intent
include Requires::Compotency
include Exceptions::SelfDefense
purpose "prevent killing and threats of killing humans"
matches
excludes
ensure
ensure
It just needs to be refactored, a lot.
Actually, for a troll, he's not that bad. I don't agree with a word he's saying, but nothing he's saying is technically, outright wrong, just overblown and highly disagreeable. That kind of opinion is what you get when you labour under the assumption that US companies and their employees deserve mollycoddling.
You know, there is a difference between trolling and pointing out the flaws in your reasoning. Just saying.
> I do not think YOU understand. This is not a debate, it is a conversation. I do not recall having signed anything that obligates me to defend my every comment to every poster who does not like what I say.
You may misunderstand. I understand wanting to have the other party "pony up" before you argue with them, so that you don't end up in a hit-and-run where you do a lot of work refuting them and they do none. But I don't think it worthless to be careful with one's words, and the notion that someone asking about your support for your propositions has to provide counter-examples and means of undermining them first is... not conductive to a good conversation, let alone a debate. It's just not good to throw out what seems like a clear fallacy like that (even unintentionally, due to being less than clear about your intent). You undermine the very idea you intend to support if you do, whether in conversation, debate, or anything else!
> Arts and invention were anything but "public domain" during the Renaissance. Artisans and inventors were supported by the wealthy and powerful, who kept the benefits for themselves. It only "trickled down" to the general populace at the whims of those same wealthy and powerful.
And yet, it did trickle down, did it not? I'm arguing more against the extreme notion that without copyright there is nothing worthwhile. Now, there's a good point here that the patronage model is not the greatest thing of all. However, it does support the notion that there are workable (if not superior) models that encourage innovation other than copyrights. But I see that you're arguing that copyright is the most effective we have so far. I think that's a reasonable point, if tempered by the notion that we should get rid of many of the excesses in the current model. For example, I think it's reasonable to say that Google has been innovative, but how many of its services have NOT been sued in some way? Book search, in particular, comes to mind. I really think publishers were shooting themselves in the foot trying to stop that one. So I hope we can agree that copyright (as it exists today, in the US) is at least not the best possible.
> If you want an actual example of the opposite, a place and time in which "intellectual property" automatically belonged in full to "the people", you need look no further than the former Soviet Union. And if you know much about their history, you know that this system simply did not work. In fact, all innovation ended up being controlled by the government and the military, while "the people", the ostensible owners of all the above, continually teetered on the brink of starvation and economic collapse.
I wouldn't blame the fall of the Soviet Union on copyright. I know you're not, but it sounds like it. With socialism, the inherent problem is quite often there isn't enough for everybody. Now, yes, there's a lack of incentive problem, too, but I think all those problems contribute. At least with copyright, there IS enough for everybody. I mean, that's why they're worried about piracy to begin with: too many people are copying it. They wouldn't be able to copy it if there wasn't enough to go around (and copies both legal and otherwise do, to be fair, use limited resources: disk space and bandwidth, in particular).
> Another place that does not officially recognize "intellectual property" to any degree is China. But you might notice something about their admittedly booming economy in recent years: they have been great at copying the inventions of others but really, really lousy at coming up with anything new of their own. Why? Because there is economic incentive to copy the work of others cheaply, but little or no economic incentive to innovate. There is no profit in it so people don't do it. This is not just real but obvious to those who have been paying attention.
You know, they said that about Japan not very long ago, too. In fact, Japanese goods once had a reputation for being inferior knock-offs that
If I recall correctly, where I live (the Netherlands) copyright law (auteursrecht) also applies to running a program, which is seen as making a copy into computer's memory or something. In other words, I need to accept the GPL to be legally allowed to run a GPL licensed program.
Coincidently, I am also taking Federal Courts (3L) and have my final in about 9 hours.
I'll add one thing for those who care.
This case has been decided before, in Florida Prepaid v. College Savings Bank. The basis for the suit against a State was the Patent Remedy Act. The argument was that when a statute uses a patent without paying for the rights, it is a taking of property without due process of law (which is part of the 14th Amendment).
The statute was ineffective because one requirement of abrogating sovereign immunity under the 14th Amendment is that Congress must show a pattern of constitutional violations without remedy. In Prepaid, the Supreme Court held Congress didn't show sufficient violations and that there could be remedies in state court (a voluntary waiver of immunity), etc.
The instant case above was brought under the Copyright Remedy Clarification Act, which may have (but probably didn't) correct the defects in the original. Congress is basically taking another stab at it.
If you look at all of the attempts to abrogate and consider what has failed (such as Title I of the ADA, the Age Discrimination Act, etc.) it's clear that the exception is quite narrow.
"everyone knows there are 25 law schools in the top 20"
New math?
"Copyright is an exclusively federal cause of action."
Thanks for pointing this out, I was looking for a place to bring this up when I found your post.
If the Feds hadn't staked an exclusive claim on copyright (enforcement?), this problem would not be here.
all the best,
drew
FreeMusicPush If you want to see more Free Music made, listen to Free
So, I will just throw this post on this off-topic thread. Although it might be offtopic, it is related with the poster of the original story.
Since some time ago I have wondered who is this "I do not believe in Imaginary Property" guy/company who posts several IP-based stories on slashdot.
I found it quite interesting that he or she started posting maybe just a year ago. We have always had "recurring" authors (I remember BeatlesBeatles as one of them). However it is intriguing that someone with legal background or interest (after all, even though I do have interest in tecno-legal matters, I could not detect when some legal news relates to IP or other slashdot relevant issue).
In conclusion, do we have an idea of who these guys are?, are they from chilling effects or from groklaw?
And about the troll, yeah, it has been here for loooong time. They have several "templates" that cut and paste sometimes according to the story (the other one I remember is the one about the guy who owned a music shop and two kids get in and decide not to buy some cd and downloaded instead from the internet).
Sigh... yes, I think I should leave slashdot for some time =oP
Ubuntu is an African word meaning 'I can't configure Debian'
You really have to resist the urge to mention these little trolls. I mean, you've given him a sexual rush that will last a day or two. But just be glad you don't have a life like his - sitting in his mother's basement, hunched over his old Pavilion PC, looking at all kinds of pR0n because he's too much of a closet case to meet real women - or guys, as the case may be.
== First cross river, then insult alligator.
you have to play all 9 innings. Until John and the SCOTUS rule, we can argue about it all we want, but it ain't over till the "world's oldest doo-wop group" sings.
We are the 198 proof..
FOX News is a right-wing puppet news organization.
FOX News is a neoconservative puppet news organization. (This became glaringly obvious during their covarage of the Republican primaries.)
There are several other factions on the "right wing" - some, IMHO, much more reasonable. (Classical conservatives, minarchist-capitalist libertarians, and the religious right, to name three big ones. Of varying reasonableness. B-) )
The neoconservatives are essentially retreaded Stalanists, some of whom are former Democrats who moved to the Republican party after the Rs took control of the congress. To the extent there is a faction on the right that is all the bad things the left wing has been saying the right wing is, that's them.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
> Napolitano works for FOX News as a commentator. FOX News is a right-wing puppet news organization.
Add ABC to that list, too. If you don't believe me, use Google news to compare headlines sometimes. I thought their stories were being mixed in incorrectly at first, until I read them and found that they were just spinning too fast to recognize.
Sure, those sections don't apply to *how* they can USE the software. But, it does apply to the rights that they have vis-a-vis others, and so does apply to the users. (A literal reading of Section 9 would say that it doesn't apply. But, then what's the point of Section 15 & 16? Stallman should have had a good IP lawyer read through this one more time....)
It's a small, but important, point. If I write some software, license it under the GPL, sell you a copy and make all sorts of promises about what that software does, under the GPL, those promises mean nothing (Section 15), and you can't sue me if the software causes problems (Section 16).
If you write some software, it goes under YOUR terms, which would supersede the GPL. If you, for whatever reason, decide to guarantee your software, then that guarantee applies, even if you otherwise apply the GPL to it. The point of the sections 15 and 16 is to disclaim any _implied_ warranty or liability, not to change the terms that the legitimate copyright holder places on the work.
File under 'M' for 'Manic ranting'
Under my original post, my terms are the GPL. I agree that I can attach more or alternate terms if I want.
."?)
Section 15 also disclaims express warranties, unless you specifically say so in writing. (Yet another place they could have used good IP counsel. This is also confusing -- does it mean that you disclaim express warranties except those stated in writing, or does it mean that you have to specifically say "Regardless of Section 15, we warrant . .
Don't take this too far -- I don't have any issue with Sections 15 and 16. My point is just that they apply to end users of the work, even if they don't redistribute it.
Laws affecting technology will always be bad until enough techies become lawyers.
I realize these are theoretical questions, and I'm not expecting rock solid legal opinions in answer. These questions do seem important given what I see (and what's been talked about as the implication) and I'm just curious whether there are any "Of course not, you idiot, INSERT_BLOODY_OBVIOUS_LEGAL_PRINCIPLE_HERE means they can't do that, even if they're immune from copyright lawsuit."
1. Would this decision make it possible, for example, for state governments (lets say, the state governments involved in the past Microsoft anti-trust lawsuit) to undertake a project to reverse-engineer the source to Windows and Office and use/modify that source?
2. If so, would they be able to work with each other on such a project (ie, the governments of various states forming an organization run by them to do this on behalf of all of them)? Would they be allowed to give the derived code to other state governments that didn't participate in the? (Congress DOES have regulatory authority over insterstate commerce, does that include inter-governmental stuff?)
3. If so, does this allow them to distribute that source or binaries, and for citizens of the state to use it without being hit by MS personally for copyright infringement in a federal proceeding (IE, could the state of MA give out "Massachussetts Windows" to its citizens? Or anyone it damn well feels like?)
If any of the above are true, it would seem to nullify the bulk, but not all, of the concerns of so many state governments have about important historical documents in MS Word format. If they can't be sued for it, they can buy one copy of Office and Windows (convenience, and likelyhood that it'll be cleaner binaries than downloaded from the Internet) and decompile the entire thing, and they have the keys to the file formats. If the latter are the case, it would appear that an extremely nasty looking Sword of Damocles is suspended over Microsoft's corporate neck, and they are probably going to play a lot nicer than they have been with state governments.
Thou shalt not kill
%
Computer: Space Commander Travis, you are charged under Section Three of the War Crimes Statute Code, Jenkin One, with the murder of one thousand, four hundred and seventeen unarmed civilians on the planet Serkasta, Date Code Beta two zero zero one.
Samor: How do you answer the charge?
Travis: I am not guilty.
Samor: Be seated. Major Thania, does the defense have an opening declaration?
Thania: We reserve our opening declaration, sir.
Samor: Very well. Enter prosecution data.
Computer: Prosecution data begins. Identities and death certifications of all victims are entered.
Thania: Objection.
Samor: Hold.
Computer: Holding.
Thania: Defense requests the names of the alleged victims and the cause of death in each case be specified.
Samor: All of them?
Thania: If it pleases the arbiter.
Samor: Do you realize how long that will take, Major?
Thania: A man's life is at stake, sir.
Samor: [deliberately] I know what is at stake.
Thania: My apologies, sir. I meant no disrespect.
Samor: [with impatience] Since you have at your disposal instant recall of all prosecution "data" I fail to see what purpose will be served by having the computer intone a catalogue of one thousand corpses!
Thania: I may wish to challenge elements of that catalogue before they are entered in the judgment program, sir.
[Samor confers with his fellow arbiters. During the pause, Bercol and Rontane talk privately.]
Bercol: Playing for time?
Rontane: And playing for Servalan. The computer will find Travis guilty--there's no doubt of that--but those three are responsible for the sentence.
Bercol: So?
Rontane: So, uh, after hearing all the blood-spattered details--
Bercol: --they'll vote for the maximum penalty.
Samor: [annoyed] Motion... sustained. Victims names and causes of death will be specified.
Bercol: [Still privately to Rontane] Do you think that Travis knows what she's doing to him?
Rontane: A psychotic like Travis? Who can tell what he's thinking?
Oh, say does that Star-Spangled Banner entwine / The myrtle of Venus with Bacchus's vine?
You must've missed that other thread where I introduced myself. You're not the first to wonder :)
:) Still, I love getting +5s on anon posts I don't sign.
:-) Anyhow, I spend a lot of time reading the news or trying to improve my submissions. For example, I try to avoid question headlines, I try to coralize blog links (especially Wordpress blogs; though this is harder now that the work firewall thinks coral cache is an "anonymizing utility"). I'm not perfect, of course, but I try my best.
:-) But I hope that by questioning the nature of copyright as "property" which imports a lot of strange notions about how we "must" treat it, we can change the question people think about from "What kind of copyright is best?" to "What is the best way to support science, technology & art?" I'm not anti-artist or looking for free stuff as some think, I'm just trying to think about how we can support both innovation and reuse, while finding a model that rewards artists appropriately for their actual work, without making them dependent on some unworkable legal fiction of "property." It's not that I don't want to see artists rewarded (indeed, I agree that they must be), it's more a matter of how, and I don't think that copyright is the answer to that. I'm convinced it's falling apart and the ways to "fix" it invariably seem to involve everyone giving up control of their own computer to one degree or another (i.e. DRM).
:)
Anyhow, I'm pretty much just your average Slashdotter who fulfills entirely too many of the stereotypes. I do have an interest in legal issues, although I've only ever taken one law class (and watched some other university classes concerning contract law on TV, though all I remember offhand is the difference between void and voidable). Most of what I've learned, I culled from Groklaw. I got this story off of Groklaw's sidebar, if you're wondering. I also poach good ones from the off-topic thread under stories there, for that matter. Wired, Ars Technica and Google news round out my usual sources, though I try only to report on those I feel are really worthwhile these days. So yeah, I'm not a lawyer. Though I'm quite grateful to folks like NYCL, PJ, and new folks like Compulawyer who really helped explain a lot in this story. I tend to read my own stories on Slashdot and reply where possible, too, but because I'm a lowly anon, it's not always noticed
As for why I submit, it's because I'm bored. I'm a sysadmin and all my stuff is working, so I have tons of free time to read news and post on Slashdot. My boss knows this and doesn't care because I drop everything and do my work when I need to. Mind you, my company doesn't know about the submissions themselves, and I certainly don't speak for it! All of this is just me, representing my personal opinions and nothing more. It's true that we make windows here, but they're the non-Microsoft kind
And I don't just post about Microsoft or copyrights, you may see me write about astronomy or other science-related things if I happen across the story first. Though these stories are rarer than I would like, and it seems like I'm stuck on the "kill those **AA-holes" beat
So my name always links to the EFF donation page, or the No Software Patents page, or things of that nature. It's not like I have a blog to begin with. Or a personal site. Or Facebook, MySpace or anything else of that sort. I guess I had some of those, once, but whatever remnants remain are hopelessly outdated.
In other words, I'm remarkably boring. But I'm glad that people seem to like my submissions
I note that you said "guys" in there. That is, technically, true. Although I certainly don't mind sharing this name with anyone who cares to use it, I believe that to date, only one person has taken me up on that offer. It was a very good submission, too. They didn't capitalize the name like I do, but that's the only way you'd have noticed the difference.
You'd think so. It's good to start the project from a simple base.
law Murder
matches death
ensures guilt
Everyone, including nature, who kills someone, is guilty of murder. All deaths are equal.
But simulations showed complete death of the subject population - that's when the requirement that the victim be sentient, to let people kill plants and animals for food, etc. That angered some people, but we felt it was for the better.
The user stories for the law were mainly about safety. Simulations of versions without a self-defense clause didn't provide safety, so we put that line of development on indefinite hold.
By the time the second draft rolled around Right-to-Dignity groups had lobbied for the right to assist someone in suicide.
The short version you propose doesn't have the flexibility, or provide the necessary benefits, and so needs a lot of work before it's ready.
> I hope you did not feel offended by my question, as I did not mean it as an offence; it was pure curiosity.
:) I'm kind of amused by all the attention because, from my perspective, I'm "just some guy" who isn't particularly noteworthy. Thought saying that makes me wonder if I'll get a Wikipedia page someday. Honestly, I can imagine myself voting for a speedy delete on the grounds that I'm really not very noteworthy, but I'd probably have to make a Wikipedia account first...
:) It was Groklaw that got me into the habit. I'm definitely no lawyer, though I can at least understand a little now. Legal words are tricky, too. There are lots of sneaky meanings of "ordinary" words, others like "notwithstanding" change completely based on where they are in the sentence, which threw me at first, though I suppose it makes sense that whatever doesn't withstand is the thing being overruled. Even so, I do try to make whatever sense of it I can and to help others do that.
:) Though I don't mean to forget the one or two others, including an anon, who also also made good contributions.
:) It makes me feel like I'm doing something worthwhile with all the free time I have as long as all of my employer's computers are working.
Not at all
> I think that I noticed your posts (and you) mainly because I am kind of interested in all the IP and legal issues of "media" content (music, software, video, books, etc.). I am sure a lot of people who read slashdot do not care about those stories but for the ones that do, It is only two or three submitters (NYCL, you and the odd one).
Thanks
But I'm really grateful to those who have stepped up in a story like this. NYCL and Compulawyer in particular
> I just wanted to tell you that I appreciate what you do. I hate that Slashdot quality has been decreasing (and I am kind of "new" here if you see my ID). It is submissions like yours that make me visit slashdot.
I'm glad you like them
Sorry, I didn't mean to make work for you on a Sunday evening. I actually submitted this... what? Last Friday? Oh well. So I just wanted to thank you for responding :)
;-)
I picked this up via Groklaw. I understand only some of it, thanks to one old college class on court procedure, and I wondered how it could have intersected with the **AA war on universities if it had gone the other way and held them liable. Of course, it didn't and I think that Slashdot just got a free course in Constitutional law, which is also good.
So thank you, Ray, for being such a good sport here. I hope I don't owe you a keyboard from when you saw your name mentioned in the story or anything
- I Don't Believe in Imaginary Property
The only argument that I can think of for the other side would look to the Due Process clause of the 14th Amendment. But there is a fatal flaw in that argument. A violation of copyright is not a taking of property. If you violate someone's copyright, they are still the copyright holder. A copyright violation is NOT a taking of property. Without a taking of life, liberty, or property, Due Process is not required, and the 14th Amendment is not implicated.
It's easy to argue that copyright violation IS a taking of property, and in fact, with regard to patent rights, the U.S. federal government has and does pay infringement royalties under the theory of eminent domain.
The 'property' inherent in both copyright and patent grants is not the piece of paper that you still possess after the government has infringed on the rights, but rather the underlying right to keep other people, including those in the government, from using your ideas without your consent or profit. Those rights ARE potentially being infringed, even though you still have the piece of paper that grants you the copyright/patent, and even if you can still assert those rights against other parties.
So, the government has taken away your ability to control the use of the copyright/patent, and that is the property they must pay for. You then apply established commercial criteria for valuing the infringement (FMV/reasonable rates for copyright licenses and royalties), in order to calculate damages the government would have to pay.
---
While the below references apply to patent rights, the legal analysis re: copyrights would be similar, I think.
"Treating the Legal Side Effects of Cipro(R): A Reevaluation of Compensation Rules for Government Takings of Patent Rights"
The author finds that, under the current statutory scheme, unauthorized government appropriations of private patent rights should be treated as eminent domain takings, compensable at the level required by the Fifth Amendment to the U.S. Constitution. Moreover, the author determines that Fifth Amendment compensation for patent takings is properly calculated by the same rules employed to assess non-punitive, actual damages in private infringement actions.
---
NY Times article
"American law is very clear: when the United States government needs a patented product, any official authorized to make purchases can ignore the patent and license someone else to make it."
''Any employee of the United States government can authorize a compulsory license for the product without even holding a hearing,'' said James P. Love, director of the Consumer Project on Technology, part of Ralph Nader's organization pushing for lower drug prices. ''The company can't even sue to enjoin the government from doing it. All they can do is sue for compensation.''
"That compensation, Mr. Love said, is based on eminent domain, the principle used when the government seizes land for a highway or military base. A judge picks an amount based on lost value, but not necessarily the highest price that could have been charged. The government uses the law fairly frequently, Mr. Love said."
I think the reason is even a bit simpler than this:
You can't sue states in Federal court because the states that created the Federal government never gave the Federal government permission to adjudicate matters between states and citizens. Since nobody gave the Federal government permission to do this, it can't.
Suppose I were to create my own private courthouse. Then, you ask me to mail your next door neighbor a summons to appear in my private court. Your neighbor would simply tear it up and ignore it - I don't have any authority to make him appear in my private court. In the same way, the Federal government only has the authority that was granted to it by the states in the first place.
Granted, this is a very constitutional argument that you've already indicated that you're not a big fan of.
Maybe a simpler way of looking at it is this - what does it mean to be a government in the first place? In a democracy the recourse for abuses is supposed to be the voting booth. It isn't an appropriate forum for individuals to go suing the state in general, because presumably if the majority didn't agree with the state things would be different. Now, if the voters do object to some state behavior and want the courts to allow it to be redressed on a case-by-base basis, they can have the legislature enact a law enabling this. As far as Federal/State jurisdiction goes - if you have a problem with the Texans, take it up in Texas - not DC. The only exception is for serious civil rights issues.