well, at least one "group of artists," and popular ones, has endorsed the Verizon/Kazaa plan, at least according to the article. Why isn't the choice of this "group of artists" as legitimate as your suggestion that they start their own ISP? It sounds a bit paternalistic, like "I know what's good for this group of artists, better than they do." Also, musicians are good at making music, not at running ISPs or telcos. Don't get me wrong, Verizon is not perfect and their customer service leaves much to be desired. But this is a first, important baby step of the artist end of the industry away from "RIAA way or the highway" robbery. I am quite curious to see how it goes.
Why in the hell has the job of system administrator for an entire school system been given to someone who hasn't a clue about setting up a firewall and closing ports?
Good god. No wonder their classrooms are filled with porn-guzzling, warez-pirating teachers. They are applying the same low standards to the hiring of teachers as they are to sysadmins.
I agree that shrink-wrap or click-wrap EULAs have a shaky legal foundation. It would be interesting to see what happened if they just told the BSA to take a hike. Sure, the BSA could file a lawsuit, but so can anyone. Since this is a public university, they ought to be able to come up with the funds to hire lawyers for at least the initial stage of the lawsuit, where the viability of the claims would be tested (or just use the state's lawyers if it's a state university.)
Re: please, please get a lawyer
on
Worst Buy
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· Score: 5, Interesting
I am a lawyer, and if I were licensed to practice in the state of Georgia I would be sending you an email right now, inviting you to become my client. Since I'm not (California only), I urge you very strongly to consult a local lawyer and pursue whatever rights you may have under Georgia law, with particular attention to the tort of "false arrest." According to your story, what happened to you was wrongful, and quite possibly illegal as well.
I know what you mean. In my opinion, there is a fundamental disconnect between the technology world and the legal world. I could go into what I think the reasons are, but that's not so important. The solution is what's important - IMO, (1) lawyers need to get more familiar and comfortable with technology, and (2) tech professionals need to get more familiar and comfortable with legal reasoning. Two way street.
I am already promoting solution part 1 by being a sort of power-user-half-ass-hacker, and also practicing law. At the law firm where I work, I'm frequently utilized as a liason between less tech-adept lawyers and their clients or vendors, where there's an issue that involves computers or sci/tech in general. And I post comments on legal issues on/. to help promote solution part 2. Also, I recently joined ACM.org's "computers and society" chapter, and I plan to attend some functions and see if I can find more ways to work on "cross cultural" communication between lawyers and hackers, educating each profession on the thought paradigms of the other. Call me a foolish optimist, but I think the communication gap can be somewhat bridged, helping to ameliorate or avoid disasters like DMCA in the future.
You're confused, and your "edited" version of the Rosen analogy is even more invalid than hers. I've never heard of anyone misrepresenting themselves as the author/performer of music they burned onto a CD. The issue with copying music is not denial of attribution to the artist, who actually created the performance that is being copied (putting their "name in the README"), but denial of compensation to the company that stamps out the copies and sticks them in stores. The real analogy, in your context, is: "How would you feel if Joe took your zlib bugfix, posted it on his website because he thought it was so great, and praised you as the best coder ever to happen to open source, and everyone downloaded your patch and patched it into their zlib, and then the company you work for sued Joe for a million bucks because it claimed the sole right to distribute your work."
Exactly. The whole artificial scarcity argument goes back even farther than the industrial revolution, and it's always been proven to be bullshit from a historical perspective. Think of the guild system and how it reacted to the printing press -- books used to be a valuable and scarce thing because only a few trained artisans could make and sell them. Gutenberg transformed them into a commodity that can be cranked out by anyone with a certain type of machine. Did Gutenberg's copying device destroy the world? Hell, no - it unleashed a Renaissance.
Lawrence Lessig's book "Future of Ideas" makes my same point, much better. (And no, I'm not Lessig giving my book a shameless plug under an assumed name.)
It's not true that material has to be published in order to be copyrighted. An author acquires a copyright in his/her work just by authoring it. However, in order to bring a lawsuit against someone for copyright infringement, you do have to register your copyright. The registration procedure ordinarily requires submission of a copy of the entire work, although I believe there is an exception for software source code (only excerpts of the code need be submitted, I think.)
In short, if there are direct copyright infringement claims in the suit (I haven't seen the actual complaint posted, so I don't know), it appears Blizzard will lose those claims unless it can prove registration of its copyright to the code in question.
very interesting points, phanatic la, especially the second. The lawsuit raises the question: "does the DMCA bar circumvention of an authentication mechanism designed to prevent certain uses of a copy (but not designed to prevent copying altogether)?" I think you're right that the "infringement" (if any) takes place when the copy is made, not when the copy is used to play on a server, so whatever the lack of authentication is facilitating, it's not infringment.
Although it's true under US law that the standard of proof in civil actions is "more probable than not" (versus "reasonable doubt" in criminal cases), there is still somewhat of a "presumption of innocence." The plaintiff in a civil lawsuit still bears the "burden of proof", meaning that the defendant automatically wins any point on which the plaintiffs fail to produce evidence. At some point, unless Vivendi demonstrates there is a genuine factual dispute as to whether bnetd acted illegally, the judge will not even let the case go to a jury. (It's called "summary judgment," for legalese jargon fans.)
How this might play out: after allowing some time for "discovery" (basically, exchange of relevant documents and taking depositions of witnesses), bnetd files a "motion for summary judgment," accompanied by a sworn affidavit of whoever was in charge of the coding, saying "we swear we didn't copy any source code," and by excerpts from the testimony of various Vivendi witnesses, who will hem and haw but finally be forced to admit they have no clue whether bnetd copied a single line of their code. (I have no idea myself whether they did or didn't, but word on the street is pretty consistent that it was a legitimate reverse-engineering job with no copying.)
At that point (in my hypothetical), because Vivendi has the "burden of proof," it would have to do more than just accuse bnetd's witness of lying. To prevent a judge from granting summary judgment to bnetd, Vivendi would probably have to either (1) come up with a witness of its own with personal knowledge that copying took place (unlikely), or (2) hire an expert witness who will compare and analyze the battle.net and bnetd code, and conclude that it "must have been copied" because of various similarities. Assuming #2, the judge would determine whether the expert's testimony was reliable enough to be admissible (assuming they're in federal court), and then determine whether the testimony was sufficient to carry Vivendi's burden of proof. This is by no means a gimme: although it's true that you can find some "expert" to opine almost anything, judges often do find their testimony insufficient to defeat a summary judgment motion.
So with that long discourse, I hope I have helped a little bit in understanding the "burden of proof." As an earlier comment stated, anyone can file a lawsuit in the US -- all you have to do is show up at the filing window with the filing fee and a stack of paper that looks sufficiently like a complaint to get past the court clerk. But there are many opportunities for defendants to get a groundless lawsuit dismissed, and it happens all the time. (If the complaint doesn't sufficiently describe how the defendant violated the plaintiff's legal rights, you can often get it dismissed without going through the time and expense of the "discovery" stage.)
in the antitrust suit get hold of this, it'll be great. Talk about a great way to demonstrate that MS cannot be trusted to comply with mere consent decrees - if they are lying to kids in school, they will lie to the court as well.
had to be in cahoots with Logicon. There is no way that Logicon was off approx. 95% on its estimate of CA's computer costs, and nobody in the govt offices realized it. Someone likely got a fat kickback to look the other way, probably a mole staffer who was installed by Logicon precisely for this purpose. The bozos who run for office can be pretty dumb (with a few exceptions, most are talented only at reciting speeches written by others, to drum up campaign contributions), but the back room politicos who pull the strings certainly are not. Hope there is a big investigation a la Enron (I live and pay taxes in CA so it's my $$$.)
I don't have mod points right now, so I reply to say I think your lesson plan is the best. Rather than trying to turn students from MS mentality to Unix mentality in two days (impossible), it goes directly to the fears and prejudices that naturally will be first in the minds of MS-trained admin-wannabes:
(1) interoperability with Windows ("what use could a Unix box serve in a MS-based environment?")
(2) desktop ease of use ("how could a generic user possibly be trained to operate a Unix box?")
(3) ease of installation and troubleshooting ("wow, it never occurred to me that 'reboot after every configuration change' is not a universal truth of computing")
Once you have cleared away these prejudices, and introduced them to a tiny bit of the potential and flexibility in *nix, you can count on the intelligent and curious ones in the bunch to explore the finer points on their own. (Don't forget to provide a handout of Linux and BSD download and info sites at the end of day two.) Showing them grep, man pages, emacs commands, config files like others have suggested is likely to be useless - you are talking about MSCE certification students, not experienced sysadmins who will understand why they might want these tools.
Thanks for the info - I was just about to post an inquiry "has anyone compared gentoo to sorcerer?" I was inspired to try Sorcerer a few weeks ago, and although I really like the concept, I'm disenchanted.
Like you, I never could get KDE to install with Sorcerer's utility, and I didn't want to bypass the utility and possibly lose package management features. And I also had great difficulty with the Nvidia drivers - it seems like the Sorcerer install for them has a recursive loop in it somewhere. Also, Sorcerer recently forked into two or three separate distros, one of them named something like "Looney Mooney" that doesn't exactly inspire my faith. And although I chafe at cute handholding like Mandrake's, or menu-driven configs that obscure most of the options, Sorcerer takes "lack of documentation" to a whole new level.
Based on this article and your comment, I think I will give Gentoo a try when I have a few spare hours. Thanks again.
fuck you, your mama, your sister, your kids, and your wife.
So much for my so-called "karma whoring," asshole. Now crawl back to your Anonymous pencil neck Coward hole and whack off. If you had any genuine interest in providing correct information on this log, rather than merely combing the footnotes for some excuse to lash out at anyone and everyone, you would do it minus the gratuitous hostility.
The fact that all of the defendants "settled" doesn't necessarily mean they capitulated. A settlement just means that a suit is dismissed because the parties have agreed to do so. True, in the typical settlement the party in the wrong has paid $ to obtain the party in the right's agreement to dismiss. However, where a groundless lawsuit is brought, it is by no means uncommon for the defendant to point this out, remind the plaintiff that if there was no legal and/or factual foundation for the suit, he can be held liable for the costs of defending the suit, and in certain circumstances can be sued for "malicious prosecution" and wind up out substantial $$$, including punitive damages. This sometimes results in the plaintiff agreeing to dismiss in exchange for a "waiver of costs" - in other words, "OK, I drop the whole thing if you agree not to come after me."
Of course, I have no way of knowing whether that did or didn't happen. But I do think it's premature to conclude that all of the mailing list contributors were simply bullied into submission by these cockamamie claims. This was a substantial group of people who knew each other's email addresses, right? It is certainly possible that one of them contacted a lawyer, was a lawyer him/herself, or simply did some research on how to respond effectively when someone files an unfounded lawsuit against you, and then gathered the troops for a unified response. (If not, that's my recommendation for next time.)
Your analogy is illogical by its own terms and factually insupportable (and those facts are not disguised by the vehemence with which you present it.)
First, let's say you break your foot at your job. You can look in any metro phone book and find about 500 lawyers who will take your case for a percentage of whatever you recover (usually 10% - 30% depending on whether the case settles or gets tried.) If you lose your case, you pay exactly nothing to the lawyer. This "contingency fee" arrangement is extremely common. The equivalent, in music terms, would be a CD that you don't have to pay a cent for unless you like the music (which is what MP3 swapping effectively accomplishes for many people). There is no company I know of offering this option for any form of media.
Second, no one is required to hire a lawyer, ever, for any reason, in the United States. Law libraries at public universities are open to all, and well stocked. Many state and local bar associations also provide free public law libraries. And it is perfectly lawful for a layperson to represent himself in defense of a lawsuit or criminal charges, or file a lawsuit on his own behalf against some other party. In short, they can "decide to go without" the lawyer without fear of any DMCA-equivalent from the legal profession. The "restrictions on who can provide legal services" do not, as you incorrectly suggest, prevent any person from acting as his/her own lawyer - rather, they preclude people who fail to pass an exam demonstrating a minimum degree of legal competency from holding themselves out to others as a qualified lawyer. (Apparently you're against such minimum standards of competency, so don't let me catch you complaining about the proliferation of MCSEs.)
The quality the individual obtains from such "pro se" representation will, of course, depend greatly on how much effort he/she puts into learning the relevant legal issues. However, this is true of all professions -- the fact that your momma got her Windows box hacked into because she did not inform herself about basic computer security does not imply that computer security experts are a "cartel."
I'll call the analogy and raise you one. Textbooks (at least here in the USA, and last time I was in school) cost anywhere from $75 - $150 a pop new. Every professor who has enough pull writes his/her own expensive text and assigns it in every class. The texts range from brilliant to useful to crap but you still have to have them because the professor will make sure something on the final comes straight out of them.
It does not take a genius to figure out that "$150 a textbook" or "$15 a CD" is not the fair market price, nor does it take a genius to figure out that such price gouging depends on the active collusion of sellers to the customer's disadvantage. I submit that when customers know they are being gouged, whether through overpriced textbooks sold to a captive student audience or overpriced CDs sold by a cartel with a large proportion of the musician population under long-term contractual captivity, they are highly likely to attempt to turn the situation around on the gougers.
Antitrust law enforcement is supposed to prevent such anticompetitive pricing from taking place, but with a few high-profile exceptions, the authorities have abdicated their role. What we see in the copying wars is old fashioned vigilante justice, and it's going to continue until the Justice Department regains its guts and goes after the publishing/music cartels.
Exactly. Just because a statute is enacted to implement some aspect of a constitutional right does not imply that the right arises from the statute, rather than the constitution. I like your interpretation of the Copyright Clause, and if it works let's use it.
However, I think it's premature to abandon the First Amendment underpinnings of the "fair use" concept. Just because courts have rejected the freedom-of-speech argument where it was applied clumsily and improperly does not mean the First Amendment has no impact on copyright doctrine. The mere act of copying a work from one format or media to another has no expressive content of its own, and thus cannot easily be defended as constitutionally protected "speech." However, in the case where Two Live Crew did a humorous version of the Roy Orbison song "Pretty Woman," the Supreme Court held that making a parody of the original work was a constitutionally protected free speech right, trumping the author's copyright. I don't recall whether the term "fair use" was used in that opinion, but it nonetheless captures the essence of the "fair use" concept you've recognized in the Copyright Clause itself.
Re:Great article, bizarre conclusions . . .
on
When Elephants Dance
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· Score: 3, Interesting
I think your equal protection idea is a plausible one - but are you quite sure that the 90 year period only applies to corporations? I know that it's typically used by corporations - how many 90 year old flesh and blood "persons" are there? But that's not the same thing. If a natural person could take advantage of the 90 day period then you cannot attack the statute on equal protection grounds.
I also think it is possible to mount a more general constitutional attack on the Bono act - for once the ultraright faction of the Supreme Court might do some good in the world. It could be argued that the extension of copyright power to the Congress must be interpreted according to the understanding of authorship rights prevalent at the time the "framers" wrote the Constitution. I believe such rights were generally thought to be limited to the life of the author. So if I'm right, arguably Congress exceeded its constitutional powers by adopting the Bono Act, and the Act goes.
Great article, bizarre conclusions . . .
on
When Elephants Dance
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· Score: 5, Insightful
I was looking at the end for the "next page" link, where the author explained how his conclusion would solve the problem. I'm forced to conclude that either: (1) the editor cut off the last half of the article, (2) the author never finished writing it, or (3) the second martini kicked in about the time he wrote the bizarre conclusion. I quote below, with my remarks in italics:
The solution is actually quite simple and requires only three steps:
Revert the term of copyright to 14 years, immediately and retroactive to all existing works.
Oh, okay, we give the media companies 14 free years of screwing us every which way but loose. They can charge us rent, per play, per eardrum, for every time we listen to a song, sell us CDs of that song that vaporize after 3 plays and don't work at all unless your stereo has been inspected by the FBI, and break into our homes any time day or night to confiscate our computers and look for digital copies of the song. But only if the song is less than 14 years old. Whew, I feel better.
Recognize moral rights in the works authors create, like every other civilized country on the planet. Make it immediate and retroactive to all existing works.
Um, okay, so in addition to copyright holders treating us like criminals, we'll have the authors on our ass too, throwing us in jail if we quote a sentence or sample a riff, or anything else they feel insults the dignity of their work. This is supposed to be a solution? It sounds like a whole new can of worms to me. The reason that the USA does not recognize so-called "moral rights" for authors is quite simple -- we have something called Freedom of Speech in the First Amendment that allows us to quote or criticize authors, and engage in "fair use" of their works -- rights that were unquestioned until the DMCA power grab. Contrary to the suggestion that it would be liberating for consumers, the European "moral rights" regime is in rationale and practice rather similar to what the media companies are seeking to institute in the US.
Prohibit any corporation from owning a copyright. Corporations create nothing; they're consensual hallucinations and exist at our pleasure. I don't know about you, but I'm not much pleased any more.
The basis of the problem is found in a single court ruling: Santa Clara County v. Southern Pacific Railroad. In this 1886 dispute, the U.S. Supreme Court found that a private corporation was a "natural person" under the Constitution and enjoyed the same protections as a citizen under the Bill of Rights. Corporations from that point forward were granted all of the rights and freedoms of a private citizen, yet none of the responsibilities. We made a mistake; hey, shit happens. It's not too late to fix it.
Exactly where do you get your information about the law? Being a "natural person" is a two-way street -- contrary to this statement, corporations are subject to all the legal responsibilities that wetware persons have. In addition, they can have the fiction of their "personhood" revoked or legally disregarded if they misuse it - not so for individuals. True, large corporations are better equipped than the average "natural person" to push the envelope of legal rights and responsibilities, but that is by virtue of their superior economic resources, not their corporate status. Case in point: accused-criminal-come-lately accounting firm Arthur Andersen is huge, rich and powerful, but it is a partnership, not a corporation. Does that make their Enron document shredding less culpable?
In sum, despite the article's cogent analysis of the problem (including the media companies' true goal of eliminating the personal computer, which I brought up a few weeks ago), none of the proposed solutions will do a thing about it, and I submit they would only make matters worse.
I would focus on the "derivative works" provisions, which share some of the characteristics MS has characterized as "viral" in the GPL. Query what happens if in a few years, MS files a series of lawsuits claiming that various developers improperly created a "derivative work" of the shared source, without giving proper attribution to MS. Although it would be hard to prove that a particular individual had seen the code, given the uncontrolled access, note that it would be equally difficult for the individual to prove s/he had not seen the code. And MS would likely interpret the "derivative" language along the lines of the "one click ordering" and "hyperlinking" patent holders, claiming that anything using a distributed model was derivative of theirs. So in order to fend off the lawsuit, the developer would have to launch legal attacks on the "viral" part of the license: the derivative works definition is too broad and vague, this similar concept isn't really derivative, free public distribution negates the contractual nature of a license, etc. That is, the developer would have to make the very sort of arguments that MS has publicly proposed against the GPL.
Am I just too too paranoid, or is this rather a clever no-lose situation MS has created? If MS wins one of these lawsuits, it gets to tie up Jane Developer's project for years and then stick its name on it. But if it loses, the loss establishes a legal precedent that will help it launch future attacks on the GPL, the success of which attacks could possibly allow MS to thwart open source projects. And MS accomplishes this with at least superficial protection from accusations that it is wielding improper monopoly power - how can licensing provisions modeled on the GPL be monopolistic? And how can anyone criticize poor MS for lawsuits arising from the open release of their source code, when that's exactly the antitrust punishment the states were seeking?
I'm sure there are a lot more scenarios to explore here, and I don't purport to be a great legal expert on the GPL so I defer to anyone who is. But in any event, I hope that schools do not widely succumb to this until the implications have been thoroughly considered.
And also kudos for supporting Win, Mac and Linux on the same CD. If a developer is serious about multi-platform support, it should always be on the same CD. Platform voting can be handled at registration time. Although big chains like CompUSA now sell Macs along with PCs, they stock few if any games in their tiny Mac software section, and nothing for Linux. I appreciate the cross-platform compatibility even when I'm buying only the Windows version - we are a mixed Mac/PC household and home office, and I'm one hell of a lot more likely to buy a new game or other software for the PC if I get instant assurance that the same version is also available for the Mac.
Anyone who was dumb enough to do this would be in danger of being successfully sued by the recipients. Abuse of process and potentially fraud come to mind. (I know you are only joking, but . ..)
Slashdot Mirror
Why in the hell has the job of system administrator for an entire school system been given to someone who hasn't a clue about setting up a firewall and closing ports?
Good god. No wonder their classrooms are filled with porn-guzzling, warez-pirating teachers. They are applying the same low standards to the hiring of teachers as they are to sysadmins.
I am already promoting solution part 1 by being a sort of power-user-half-ass-hacker, and also practicing law. At the law firm where I work, I'm frequently utilized as a liason between less tech-adept lawyers and their clients or vendors, where there's an issue that involves computers or sci/tech in general. And I post comments on legal issues on /. to help promote solution part 2. Also, I recently joined ACM.org's "computers and society" chapter, and I plan to attend some functions and see if I can find more ways to work on "cross cultural" communication between lawyers and hackers, educating each profession on the thought paradigms of the other. Call me a foolish optimist, but I think the communication gap can be somewhat bridged, helping to ameliorate or avoid disasters like DMCA in the future.
Lawrence Lessig's book "Future of Ideas" makes my same point, much better. (And no, I'm not Lessig giving my book a shameless plug under an assumed name.)
In short, if there are direct copyright infringement claims in the suit (I haven't seen the actual complaint posted, so I don't know), it appears Blizzard will lose those claims unless it can prove registration of its copyright to the code in question.
How this might play out: after allowing some time for "discovery" (basically, exchange of relevant documents and taking depositions of witnesses), bnetd files a "motion for summary judgment," accompanied by a sworn affidavit of whoever was in charge of the coding, saying "we swear we didn't copy any source code," and by excerpts from the testimony of various Vivendi witnesses, who will hem and haw but finally be forced to admit they have no clue whether bnetd copied a single line of their code. (I have no idea myself whether they did or didn't, but word on the street is pretty consistent that it was a legitimate reverse-engineering job with no copying.)
At that point (in my hypothetical), because Vivendi has the "burden of proof," it would have to do more than just accuse bnetd's witness of lying. To prevent a judge from granting summary judgment to bnetd, Vivendi would probably have to either (1) come up with a witness of its own with personal knowledge that copying took place (unlikely), or (2) hire an expert witness who will compare and analyze the battle.net and bnetd code, and conclude that it "must have been copied" because of various similarities. Assuming #2, the judge would determine whether the expert's testimony was reliable enough to be admissible (assuming they're in federal court), and then determine whether the testimony was sufficient to carry Vivendi's burden of proof. This is by no means a gimme: although it's true that you can find some "expert" to opine almost anything, judges often do find their testimony insufficient to defeat a summary judgment motion.
So with that long discourse, I hope I have helped a little bit in understanding the "burden of proof." As an earlier comment stated, anyone can file a lawsuit in the US -- all you have to do is show up at the filing window with the filing fee and a stack of paper that looks sufficiently like a complaint to get past the court clerk. But there are many opportunities for defendants to get a groundless lawsuit dismissed, and it happens all the time. (If the complaint doesn't sufficiently describe how the defendant violated the plaintiff's legal rights, you can often get it dismissed without going through the time and expense of the "discovery" stage.)
(1) interoperability with Windows ("what use could a Unix box serve in a MS-based environment?")
(2) desktop ease of use ("how could a generic user possibly be trained to operate a Unix box?")
(3) ease of installation and troubleshooting ("wow, it never occurred to me that 'reboot after every configuration change' is not a universal truth of computing")
Once you have cleared away these prejudices, and introduced them to a tiny bit of the potential and flexibility in *nix, you can count on the intelligent and curious ones in the bunch to explore the finer points on their own. (Don't forget to provide a handout of Linux and BSD download and info sites at the end of day two.) Showing them grep, man pages, emacs commands, config files like others have suggested is likely to be useless - you are talking about MSCE certification students, not experienced sysadmins who will understand why they might want these tools.
Like you, I never could get KDE to install with Sorcerer's utility, and I didn't want to bypass the utility and possibly lose package management features. And I also had great difficulty with the Nvidia drivers - it seems like the Sorcerer install for them has a recursive loop in it somewhere. Also, Sorcerer recently forked into two or three separate distros, one of them named something like "Looney Mooney" that doesn't exactly inspire my faith. And although I chafe at cute handholding like Mandrake's, or menu-driven configs that obscure most of the options, Sorcerer takes "lack of documentation" to a whole new level.
Based on this article and your comment, I think I will give Gentoo a try when I have a few spare hours. Thanks again.
So much for my so-called "karma whoring," asshole. Now crawl back to your Anonymous pencil neck Coward hole and whack off. If you had any genuine interest in providing correct information on this log, rather than merely combing the footnotes for some excuse to lash out at anyone and everyone, you would do it minus the gratuitous hostility.
Of course, I have no way of knowing whether that did or didn't happen. But I do think it's premature to conclude that all of the mailing list contributors were simply bullied into submission by these cockamamie claims. This was a substantial group of people who knew each other's email addresses, right? It is certainly possible that one of them contacted a lawyer, was a lawyer him/herself, or simply did some research on how to respond effectively when someone files an unfounded lawsuit against you, and then gathered the troops for a unified response. (If not, that's my recommendation for next time.)
First, let's say you break your foot at your job. You can look in any metro phone book and find about 500 lawyers who will take your case for a percentage of whatever you recover (usually 10% - 30% depending on whether the case settles or gets tried.) If you lose your case, you pay exactly nothing to the lawyer. This "contingency fee" arrangement is extremely common. The equivalent, in music terms, would be a CD that you don't have to pay a cent for unless you like the music (which is what MP3 swapping effectively accomplishes for many people). There is no company I know of offering this option for any form of media.
Second, no one is required to hire a lawyer, ever, for any reason, in the United States. Law libraries at public universities are open to all, and well stocked. Many state and local bar associations also provide free public law libraries. And it is perfectly lawful for a layperson to represent himself in defense of a lawsuit or criminal charges, or file a lawsuit on his own behalf against some other party. In short, they can "decide to go without" the lawyer without fear of any DMCA-equivalent from the legal profession. The "restrictions on who can provide legal services" do not, as you incorrectly suggest, prevent any person from acting as his/her own lawyer - rather, they preclude people who fail to pass an exam demonstrating a minimum degree of legal competency from holding themselves out to others as a qualified lawyer. (Apparently you're against such minimum standards of competency, so don't let me catch you complaining about the proliferation of MCSEs.)
The quality the individual obtains from such "pro se" representation will, of course, depend greatly on how much effort he/she puts into learning the relevant legal issues. However, this is true of all professions -- the fact that your momma got her Windows box hacked into because she did not inform herself about basic computer security does not imply that computer security experts are a "cartel."
It does not take a genius to figure out that "$150 a textbook" or "$15 a CD" is not the fair market price, nor does it take a genius to figure out that such price gouging depends on the active collusion of sellers to the customer's disadvantage. I submit that when customers know they are being gouged, whether through overpriced textbooks sold to a captive student audience or overpriced CDs sold by a cartel with a large proportion of the musician population under long-term contractual captivity, they are highly likely to attempt to turn the situation around on the gougers.
Antitrust law enforcement is supposed to prevent such anticompetitive pricing from taking place, but with a few high-profile exceptions, the authorities have abdicated their role. What we see in the copying wars is old fashioned vigilante justice, and it's going to continue until the Justice Department regains its guts and goes after the publishing/music cartels.
(thank you for indulging this rant.)
However, I think it's premature to abandon the First Amendment underpinnings of the "fair use" concept. Just because courts have rejected the freedom-of-speech argument where it was applied clumsily and improperly does not mean the First Amendment has no impact on copyright doctrine. The mere act of copying a work from one format or media to another has no expressive content of its own, and thus cannot easily be defended as constitutionally protected "speech." However, in the case where Two Live Crew did a humorous version of the Roy Orbison song "Pretty Woman," the Supreme Court held that making a parody of the original work was a constitutionally protected free speech right, trumping the author's copyright. I don't recall whether the term "fair use" was used in that opinion, but it nonetheless captures the essence of the "fair use" concept you've recognized in the Copyright Clause itself.
seller makes more money when product "crashes."
I also think it is possible to mount a more general constitutional attack on the Bono act - for once the ultraright faction of the Supreme Court might do some good in the world. It could be argued that the extension of copyright power to the Congress must be interpreted according to the understanding of authorship rights prevalent at the time the "framers" wrote the Constitution. I believe such rights were generally thought to be limited to the life of the author. So if I'm right, arguably Congress exceeded its constitutional powers by adopting the Bono Act, and the Act goes.
In sum, despite the article's cogent analysis of the problem (including the media companies' true goal of eliminating the personal computer, which I brought up a few weeks ago), none of the proposed solutions will do a thing about it, and I submit they would only make matters worse.
I would focus on the "derivative works" provisions, which share some of the characteristics MS has characterized as "viral" in the GPL. Query what happens if in a few years, MS files a series of lawsuits claiming that various developers improperly created a "derivative work" of the shared source, without giving proper attribution to MS. Although it would be hard to prove that a particular individual had seen the code, given the uncontrolled access, note that it would be equally difficult for the individual to prove s/he had not seen the code. And MS would likely interpret the "derivative" language along the lines of the "one click ordering" and "hyperlinking" patent holders, claiming that anything using a distributed model was derivative of theirs. So in order to fend off the lawsuit, the developer would have to launch legal attacks on the "viral" part of the license: the derivative works definition is too broad and vague, this similar concept isn't really derivative, free public distribution negates the contractual nature of a license, etc. That is, the developer would have to make the very sort of arguments that MS has publicly proposed against the GPL.
Am I just too too paranoid, or is this rather a clever no-lose situation MS has created? If MS wins one of these lawsuits, it gets to tie up Jane Developer's project for years and then stick its name on it. But if it loses, the loss establishes a legal precedent that will help it launch future attacks on the GPL, the success of which attacks could possibly allow MS to thwart open source projects. And MS accomplishes this with at least superficial protection from accusations that it is wielding improper monopoly power - how can licensing provisions modeled on the GPL be monopolistic? And how can anyone criticize poor MS for lawsuits arising from the open release of their source code, when that's exactly the antitrust punishment the states were seeking?
I'm sure there are a lot more scenarios to explore here, and I don't purport to be a great legal expert on the GPL so I defer to anyone who is. But in any event, I hope that schools do not widely succumb to this until the implications have been thoroughly considered.