Entering into a contract for publication of a book is a business venture - not the equivalent of Joe Blow plugging in his new Imac to surf the web. If you are going to play in the real world, you owe it to yourself to recognize that not everybody out there is a warm fuzzy, and to find out what the rules are before the bad guys take advantage of your ignorance. It has nothing to do with "blaming the victim," or blaming anyone. It has to do with using appropriate precautions for the environment you're in. If you walk out into a busy street inside the crosswalk, sure, you have a right to expect the traffic to screech to a halt. That's what the law requires them to do, and that's what a good driver would do. But does that mean you should just walk into the crosswalk blindfolded and take your chances? I'm not saying these things to "blame" Weisstein for what happened -- I'm saying it because I'm very sad that it happened, and because I hope it doesn't have to happen to anyone else. That's why I strongly recommend going into contractual transactions with your eyes open, and seeking professional advice if you have any concerns.
And speaking of "blaming the victim," I hear an awful lot of that on Slashdot in other contexts. Aw gee, too bad you got rooted, shouldn't have had your ports open, etc. People here seemingly have no problem understanding that a security lesson can be learned from even the most malicious of system intrusions, provided the victim educates him/herself and takes appropriate precautions in the future. All I'm trying to do is show how that principle applies in the contractual context as well.
Begging your pardon, but it appears that Eric Weisstein "hired lawyers" too. However, he made a mistake in hiring them only after he was threatened with litigation. Does that make him a person from whom society should be protected, in your view? Is Eric not welcome anymore on your planet? I imagine not.
One likely reason that Weisstein failed to obtain legal advice in advance of litigation, when it actually could have helped him avoid this situation, is ignorance about what lawyers really do. Businesses and business people of all types, small and large, routinely obtain legal advice before entering into contractual committments. Hiring a lawyer to review a contract is not, as you suggest, a signal that one is going on the warpath, or a manifestation of hostility to one's fellow man. It is, rather, the equivalent of hiring a security consultant to attempt unauthorized entry to your system, and advise you of needed security measures - a prudent precaution.
Don't you want to know whether your network has holes in it like a sieve? OK then, why would you not want to know if your contract has holes in it like a sieve? And why do you consider it detestable to hire an expert to provide you with that information? It's prejudices like yours among the sci-tech crowd that render the Eric Weissteins of the world so vulnerable to this type of exploitation.
It is really sad that a researcher who appears to give so much to the community had to spend so much time and effort struggling out of a legal morass. Based on his published account, I certainly agree that CRC behaved in a shameful and abusive matter, regardless of whether its position on the contract and copyright issues was legally justified. However, may I take this opportunity to suggest that if the author had invested a relatively minor amount of time and money in consulting a lawyer prior to signing his book contract, the protracted litigation and consequent much-greater expense might well have been avoided.
Now you're probably looking at my sig and thinking "what a shameless plug by a sleazy lawyer trying to drum up business." But I am primarily a litigation attorney. I can (and do) make a hell of a lot more money representing one side or the other in protracted, expensive misery-inducing litigation than I could hope to make by doing three-hour book contract consultations for legally-naive techno geniuses, even if half the people on/. became my clients. But I feel this sense of grief and waste often, even in dealing with my existing clients - I wish I could tell them: "if you'd gotten legal advice at the outset of this situation, or paid heed to the legal advice you did get, you wouldn't be in this pitched battle today."
Please, please, take this case as an example. Cut yourself some slack, and consult an independent lawyer before signing any agreements. Don't count on your "editor" for legal advice. Listen politely when someone says you can ignore all the fine print in their contract because it's just "boilerplate" -- then say, "yes, I know all that stuff is legalese. So I'm sure you won't mind if I have a lawyer look at it, and get back to you." Any reputable company will permit this, and even respect you for it. On the other hand, if they raise a stink, that ought to tell you something right there . ..
the site's jammed up, and there's only 10 posts up here. Seems as though every single/.er just flew immediately to the site to see with their own eyes (ok, I admit I did.)
I hope whatever license agreement they had to work out to get the site back up isn't "per hit."
Yes, the politicians listen to their contributors far too much. That's clearly why the feds and six state attorney generals have signed on - there's nothing whatsoever in the settlement with a realistic hope of benefiting competition or consumers. But that's our collective fault, because the citizens of the USA consistently don't bother to VOTE!!! Election turnouts below 50%, and even below 20% have become the norm, and this is particularly true in local elections where people like state attorney generals get chosen.
Yes, I'm going to contact the attorney general of my state immediately and let him know how I feel. But even though I vote in every election, my own voice is cheapened and weakened by the huge numbers of people who don't. Why should an elected official listen to me, rather than a contributor, when the overwhelming statistical odds are that I am among the huge pool of incorrigible non-voters who have surrendered all power over their government's actions? Even if I announce that he/she's "got" or "lost" my vote next time, odds are that's not true.
I know, I know, this is another one of my "granny knows what's good for you kids" rants. But think about it, please. What if next election there were an 80% or 90% turnout? You could actually fire your state's attorney general for sucking up to MS and taking this ridiculous settlement! Imagine that. Are you so absolutely sure that voting would have no impact? Are you so positive that you won't even bother to try it, thereby guaranteeing business as usual? Probably (sigh).
I have a new idea, which I'm going to practice starting with the next local election. Our state's ballots have little square tear-off tabs. They don't show who you voted for, just the fact that you cast a ballot. I'm going to save mine and scan them, so that I have a permanent record of every election I've voted in, which can be printed out and mailed, or sent as an email attachment. Thus, when I contact an elected representative to express my opinion, it will be accompanied by a concrete "voting record" -- evidence that I care enough to back my opinion up with my vote.
If this practice became widespread, it might be quite effective, not only in empowering communications between technologically-informed citizens and the government, but in exerting some peer pressure against the huge non-voting majority. Like, if voters carried their voting records around all the time, then if someone was really whining about how the government never listens to us, we could all whip out our voting records and say "let's see yours." It could become shameful to protest government action without a voting record to throw down when one's bluff is called; shameful enough that Americans actually start exercising the democratic rights we purport to stand up for. Ok, I'm a dreamer, but I'll keep trying. I believe in a democratically elected government, for Afghanistan, Iraq, Saudi Arabia and . . . what the heck, maybe even the USA for a change.
I do audio recording on my PC, among other things. 30 dB difference in background noise is a lot. I have a CoolerMaster aluminum case, which I formerly ran with stock fans and power supply - the thing was cold, sure, but the 5 fans and the power supply were significantly loud when recording. Recently I replaced them with Silencer fans and one of the quiet power supplies (I forget which). Also I got a Volcano cooling fan for the Athlon, which was advertised to be quieter than average. It's not exactly silent yet, but there's a noticable reduction in noise, so I can actually have the mike within a yard or two of the PC without picking up the fan drone. Also, I have no heat problems to speak of, even though I am somewhat overclocked (1100 to 1200) and my virtual synth software places a high load on the CPU.
Funny, funny. But really, you couldn't accomplish a continuing intrusion that way. Chopping people up is rather noticable, bodies laying about and all. The real value for an intruder of rooting a system is keeping it rooted for an extended period, while undetected. Seems the same would be true of rooting a secure area. Like, even in a nuclear power plant where gaining entry to the area would theoretically allow the intruder to accomplish a one-shot destructive act, don't you figure that repeated access to the area would be necessary for the intruder to learn the proper procedures and codes? He/she'd want to plant cameras, bugs, etc., then come back. That severed arm is not going to be re-usable for that purpose, as poor Joe who turned up armless and dead is off the access list immediately.
Is it really that difficult or costly for companies to implement things like retinal/iris scan, voice printing, etc. for highly secure areas? I've always felt we can have no true security based on things like ID cards (lendable and counterfeitable), passwords (crackable, write-down-able, storable), and human security guards (con-able). It would be rather intrusive and expensive, I'm sure, to implement biometric scanning for every person entering a public building, but if the critical security areas of that building were restricted to root users via biometrically automated door locks, breaches of mundane perimeter security would be less threatening.
OTOH, I'm sure someone will reply that biometrics has a weakest link as well. E.g., intruder could corrupt a root user and get their retina authorized into the system illegitimately, figure out some kind of black box to hold up to the scanner, crash it to its embedded version of shell prompt, and send it "unlock door" command, etc. But from my perspective, biometrics kicks the ass of any other solution, and I'd feel a lot safer if airports, highrises, and public utilities were using it for critical areas.
Hear hear. Let's not forget that dead men have no rights at all. Before our Constitution, Bill of Rights, democratically elected republican government, and historical tradition of liberty could even come into existence, it was first imperative for our nation to accomplish a critically important task:
Win the war against the British, who were actively in the process of slaughtering our liberty-inclined ancestors.
Likewise, we are now faced with an enemy who so reviles our nation that he has ordered his followers to murder all Americans, wherever they are found. (don't believe me? read the fatwa.) If we fail to make it our first and foremost priority to win the war against Osama Bin Laden, and prevent his followers from continuing to murder us en masse, we will not be around to exercise the freedoms we so value. Do you think our grandkids will thank us for whining over bag searches at NIH during a goddamn war?!? No, they won't, because they'll be corpses too.
I'm sorry, this is trollish language, but I can't restrain myself. If the original poster of this thread is representative of those working for our government and entrusted with keeping our nation safe, then there is no life or future ahead of us. The USA and the world will be passively handed over to the military dictatorship of Osama-stan by the spoilt, naive, soft weaklings in our government service, who would sooner have vials of Ebola walking out of the NIH, and into the hands of the nation's declared enemies who intend to use them to kill us all, rather than lose 3 minutes off their precious lunch break standing in an inspection line.
We are at war. Get real. The people searching you are trying to save lives. The NIH itself exists for the purpose of trying to save lives. If you don't care about saving lives, work somewhere else. There is nothing unreasonable, invasive or unconstitutional about the searches you've reported, which are obviously directed at the public's safety as well as yours.
That'll certainly help boost X-box sales. Are you sure Microsoft didn't invent this gadget? Blowing up a competitor's hardware would be very consistent with their other business practices.
Well, with the disclaimer that I don't know much about how portable MP3 players implement their codecs, is it possible that someone could hack this device and add ogg capability? I mean, unless the MP3 codec is completely hardwired into a ROM, this device contains a processor, memory and bus sufficient to call and run one software codec, so why not another? It seems that if it can serve as a portable hard drive, it must have OS capability sufficient to operate as a file server, and may have a reasonably competent version of OS X running in there. Certainly the hard drive provides sufficient space for such an implementation, and the Firewire port would allow you to load an executable onto the device. And there seem to be many on/. who love hacking such embedded devices. Maybe I'm wrong, but it seems theoretically possible, and people have done some amazing hacks on Palm, etc.
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Your definition of where "sampling" occurs seems like semantics to me. If one does not have software capable of editing and storing a sample at a specific bit rate, the audio hardware cannot "sample" at that quality, whatever its underlying capability. A theoretical "sample" sitting in the audio hardware without software that can make use of it? Cmon, really . . . this is like "when a tree falls in the forest, and no one hears, does it make a sound?"
And, in any event, your response is irrelevant. The original poster was scoffing at the Sound Forge editor -- a software package -- as insufficiently "pro audio" to qualify for this discussion -- a discussion of software packages for Linux with pro audio capability. As I am familiar with and use Sound Forge, my reply pointed out the high audio quality capabilities of Sound Forge, and asked what software could do better. (As expected, no response.) According to your theory, all software would be "pro audio" even if it dithered every sample down to 12K rate or even less, because only the quality of your hardware matters. Ha.
(By the way, my audio hardware is an Echo Layla 24/96.)
Sound Forge Pro samples in 32 bit and over 96,000 sample rate -- that is not "pro" anymore? If not, I'm amazed. What do you have that can do better? I would really like to know about it.
I'm not going away anytime soon, although I'm sure I'll be posting less often when my workload picks up. (I'm in about a 4-week slump which I hope is temporary.) Just as I wish more lawyers were technically literate, I wish more technology professionals were legally literate. The latter, perhaps I can do something about. The quality of debate (and, incidentally, the potential political influence of those participating) is improved thereby.
Now, about your random testing proposal for the criminal justice system. I suspect, once you think about it, you'll realize you don't really mean it. Your proposal would subject no less than 4000 human beings to potential criminal charges and penal consequences, at "random," for the sake of "testing." I'm sure you'll acknowledge that, at least in this respect, human beings are qualitatively *different* from mere data input. Data can be thrashed, crashed, screwed, blued and tattooed for testing purposes, because it doesn't suffer, wince, or file lawsuits.
And there you have the principal problem with systems analysis of human-relationship systems such as our legal system. They are not objectively testable without violating the moral code that makes us want to test them in the first place. If you wonder why "The Law" seems less consistent and rational than C++ code, consider that there is no morally acceptable human counterpart to the debugger.
I agree, though, that the criminal justice system penalizes the "poor and the black" (and brown, and even not-quite-white) disproportionately. There are many proposals for how to remedy this situation. I think monitoring of racial profiling, and availability of DNA testing to convicts/suspects, would be good steps toward equity. However, I think that the legal system only reflects and concentrates the prejudices of society at large, so I think a more systemic purging is necessary to correct this problem.
(P.S. - I'm posting without the "bonus" because I'm veering a bit off-topic.)
Your analysis of the DOJ's involvement is certainly logical, but not correct. When a private party brings a court action that calls into question the constitutionality of a law, typically the government agency charged with enforcing that law is named as a defendant. For example, if I'm a gun rights organization suing to get a U.S. gun control regulation thrown out as violating the Second Amendment, I'd probably name the Bureau of Alcohol, Tobacco and Firearms as a defendant. Even if I *didn't* name the ATF as a defendant, it would be allowed to ask the court's permission to "intervene" in my suit as a defendant, if the ATF felt my suit was contrary to their interpretation of the regulation, or just because they want to defend the regulations they enforce in court.
I don't know whether the DOJ was originally named as a defendant in this case, or whether it intervened. But in either event, its presence in the suit does not "suggest that some kind of criminal affair is going on." The DOJ may very well be interested in forcefully advocating the position that Dr. Feltner's academic pursuits are NOT criminal. No, really -- I'm totally serious. A law that broadly criminalized aspects of academic instruction would almost certainly be tossed out on constitutional First Amendment grounds. If the DOJ feels that any aspect of the DMCA is a useful tool, it would want to urge the court to adopt a so-called "limiting construction" of the DMCA that would preclude its future application in an unconstitutional way, thus saving it from complete invalidation.
As for whether the "legal system" will apologize to Dr. Felten and reimburse him for his expenses after "dropping the case," don't forget that Dr. Felten is the plaintiff who brought the case in the first place. Don't get me wrong - I think the RIAA's pressuring gave him valid grounds for seeking legal action. But at this point, the only person who has the power to "drop the case" is Dr. Felten.
I believe the real point of your inquiry is the unfairness of burdening private citizens with onerous legal fees, simply because they oppose a law they believe is unjust. However, although the "American rule" normally requires each party to pay his/her own legal fees, there are exceptions to this rule where the litigation opponent uses abusive tactics or takes a substantially unjustified position, where the litigation confers a public benefit, and where (as here) a private citizen litigates against a government opponent. These exceptions do not always prevent the unfair results that concern you, but they are a step in the right direction.
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This legal doctrine stems from the Constitutional limitation of US courts' jurisdiction to a "case or controversy." The judicial branch lacks jurisdiction to offer "advisory opinions" on how a law is to be interpreted, or whether it is constitutional. They don't have a general power to pore over the output of Congress and issue rulings on it. Rather, there has to be an actual controversy between opposing parties, which gives the judicial branch jurisdiction to decide questions of statutory interpretation or constitutionality presented thereby.
Ripeness, typically, is applied to cases that challenge the constitutionality of a law "as applied" to a particular set of facts, but before the agency charged with enforcing the law has actually applied the law in that manner. It is essentially a challenge to the judicial branch's jurisdiction - asserting that there is not yet an actual controversy. Looked at another way, analysis of a law's future hypothetical applications is too abstract for any court to perform reliably, and is therefore "non-justiciable." (Contrary to some comments, justiciability is not a made-up word, it's a well-settled legal doctrine.)
Although I've not read the DOJ's papers, I would expect their ripeness challenge to be along these lines: "We are the agency charged with criminal prosecution under the DMCA. We've never prosecuted or even threatened to prosecute the professor who is the plaintiff in this suit. Nor have we prosecuted or threatened to prosecute under the DMCA *any* member of academia on the basis of an academic presentation. Hence, there is insufficient basis to conclude that the DOJ would ever apply the DMCA to criminally prosecute academic speech, and this action is therefore not ripe."
That argument would normally be a strong one, and if you think about it, it makes sense. Virtually everyone who posts here is worried that someday they might be prosecuted under the DMCA, but until that happens to you, or there's a credible threat that it will happen to you, you don't have a lawsuit. The professor's case is modestly different, because the RIAA threatened to pursue charges against him. But as a private party, the RIAA cannot bring criminal charges unless the DOJ decides those charges are well-founded. Apparently, it has not so decided - hence, the ripeness challenge.
But wait -- don't give up hope yet. This is a First Amendment case, which opens up some other possibilities. A First Amendment challenge to the constitutionality of a law can be brought, not just to the law "as applied" to a particular set of facts, but to the law "on its face." The basis for a "facial" challenge is the "chilling effect" that an overbroad statute may have on speech, even if the speech itself is never prosecuted. Since free speech is highly valued, courts will apply this level of scrutiny to a statute that creates a substantial likelihood that worried people will voluntarily curtail their own protected speech, even if they are never prosecuted. In essence, it's a ripeness exception.
That argument ought to have a fair chance of success here. (Don't forget that the DOJ's mere motion does not decide the issue - the plaintiff gets to file a brief opposing the motion, and the judge makes the decision, not the DOJ.) A, the RIAA threatened to pursue criminal charges under the DMCA, and B, the professor cancelled his presentation as a result. Even though the DOJ has never actually applied the DMCA in this manner, if the judge looks at the "face" (the text) of the DMCA and finds that it could be construed to criminalize what the professor planned to do, the judge should find that the DMCA has an unconstitutional "chilling effect" on protected academic speech, and deny the DOJ's motion.
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Don't feel bad. Your comments were not as inaccurate as much of the pop folklore that passes for legal knowledge on/. and the internet in general. Gives me a reason to exist, and provides a springboard to circulate more accurate information. Plus, if I were to make some inaccurate statement about technical subjects I'm not trained in, I bet that 100 people would correct me, and they should.
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both legal remarks not exactly correct (nothing personal).
Under the Brooke Group case, decided by the US Supreme Court in about 1995, oligopolistic collusion to dominate a market can constitute an antitrust violation, even though none of the players has sufficient market power on its own to constitute a monopoly.
You're partially correct in that abusive business conduct might also form the basis for a RICO claim. However, you need certain specific "predicate acts" to support a RICO violation, and although criminal infringement of a copyright is a predicate act, misuse of a copyright is not. So I wouldn't be too quick to assume that this is just the "reverse Napster case" here.
RICO also comes in *both* civil and criminal flavors. Criminal RICO charges would have to be brought by the Justice Dept., and although the penalties sound scary, don't forget that the wheels of government turn slowly, and there's an awfully high burden of proof to convict someone of a crime. (And also, I suspect they're quite caught up in other stuff at Justice right now.)
In contrast, civil RICO claims can be brought by any individual/company who claims to have been "injured in business or property" by the RICO violation. A successful claimant is entitled to treble damages, so although it doesn't sound as threatening as criminal charges, civil RICO is no little mousie.
um, you'd *better* figure out how to make them play video, or at least sound. Afghanistan has one of the lowest literacy rates on the globe, and it's gotten even lower since the Taliban took over in 1996 and banned women from going to school.
I know, I know, it's just Katz rabble-rousing and I should lower my expectations, but what is the basis for this statement:
"Most Americans are convinced that technology -- GPS targeting systems, thermal imaging, new intelligence retrieval systems, pilotless drone reconnaisance aircraft, high-altitude bombers, special forces equipped with goggles than can see into caves -- will carry the day for us. Will it? What can technology really do for us in this new war?"
Everything I have read, viewed or heard in the media, every poll I have seen, and every live human I have spoken with in the weeks since September 11 supports precisely the opposite proposition - the general public DOES NOT BELIEVE that technology gives the US/Allies the advantage in this war; it will be won, if at all, by traditional human intelligence, gritty casualty-producing ground combat, determination, and patience. And I don't hear anyone underestimating the low-tech Afghan mujahedeen.
Where are the "most Americans" who believe this is a magic tech silver bullet war? I don't see or hear them anywhere.
Better get good recon on those "8000 Taliban at the Uzbekistan border." Ask yourself why the Taliban made such a point of *announcing* this supposed troop move to the world. How much you want to bet they moved 8000 civilians up to the Uzbekistan border and set up a refugee camp, then deliberately enticed the USA to bomb the area, so that they could trumpet the USA's barbaric killing of civilians to the world?
Oh, y'all think the Taliban wouldn't slaughter thousands of peaceful Afghani civilian Muslims to maintain power? Wouldn't murder their country's own women and children?
Sigh. How do you think the Taliban got control of Afghanistan in the first place? And how do you think they keep it?
The Taliban are rivaled only by Saddam Hussein as the most prolific murderers of Muslim civilians in modern times. Too bad we didn't give a damn unless and until this monstrous band of dictators turned its underground killing machine on *our* civilians. We unilateralist, washed-in-the-blood-of-the-Cold-War, surfing-the-tech-boom "Americans" were just too comfy to pay much attention. International news doesn't sell. Run more footage on Chandra Levy and shark attacks, please.
Here are some thoughts for today:
"Let the word go forth from this time and place, to friend and foe alike, that the torch has been passed to a new generation of Americans; born in this century, tempered by war, disciplined by a hard and bitter peace, proud of our ancient heritage, and unwilling to witness or permit the slow undoing of those human rights to which this Nation has always been committed, and to which we are committed today at home and around the world.
"Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and success of liberty. This much we pledge, and more. To those old allies whose cultural and spiritual origins we share, we pledge the loyalty of faithful friends. United, there is little we cannot do in a host of cooperative ventures. Divided, there is little we can do; for we dare not meet a powerful challenge at odds and split asunder." John F. Kennedy, January 20, 1961.
Forty years have come and gone, and we, the Americans to whom Mr. Kennedy spoke, have done everything with that global commitment except honor it. We stained it with the ignorance and dishonesty of the war in Vietnam. We abused it propping up bloody dictatorships in South America. We called ridicule upon it by watching in silence while both Israel and Palestine reneged on their promises. We spat on treaties with our European allies, and walked out of global human rights conventions. And though many noisily proclaim that our government takes these actions despite our opposition, the numbers don't lie: more than half of us don't vote, and some even brag about the fact.
Despite all this, our allies seem to be welcoming us back to the world community. Let's not blow it this time, my fellow Americans. Keep those ration drops and radios coming. Stuff the Taliban back in the holes they crawled out of and help Afghanistan institute democracy. And then, let's continue acting like global citizens for a change. It's not too late.
(my sarcasm is not directed at your post, BTW. A rant was bottled up inside me.)
The increasing number of overbroad patents in the software/internet area does not promote innovation, it stifles it. I don't think it's true any longer that patent applicants have incentive to police their own applications to avoid future patent invalidation - most patents are issued or owned by major players who merely wave the patent and make a big noise, confident the other guy will go away without a fight.
Is there any support in government circles for an overhaul of patent office procedures, to address the anti-competitive effects of making things like "clicking" and "linking" patentable?
I don't think the concept of a EULA itself is anti-capitalist. It's simply an "end user license agreement," which is a limited bundle of rights that you purchase - the content of that bundle of rights may vary from one licensor to another. Even though it's not intuitive to think that way, when you buy a car or a plot of land you are also buying a bundle of rights defined by law. "Yeah, but I own the car and can resell it or do anything I want with it!" Well, yes you can resell it - that's part of the bundle of rights you buy with the car. But you can't do anything you want with it, even though it's "your" property. You can't park it on the sidewalk. In some neighborhoods, you can't even park it on your own front lawn, even though the car and the lawn are both "your" property. And you can't run over me with "your" car, even if I'm standing on "your" lawn. And even the most fundamental, traditional private property such as a parcel of land can be subjected to restrictive covenants by the seller, which are binding on the buyer and all successors.
In short, private property and what you can do with it is a legally delineated and limited concept, in all its forms. Software licenses are not qualitatively different.
The real question to ask about EULAs, from a capitalistic perspective, is "why are the EULAs all the same" and "why do they keep getting uniformly more restrictive." In a healthy competitive environment, the desire of intellectual property holders to increase profits by imposing more-restrictive EULAs would be offset by the danger of losing customers to competing IP holders offering less-restrictive EULAs. Where you see the opposite behavior for an extended time period, you are looking at a market where normal market forces are not operating. This can be due to abuse of a monopoly (as with MS in the OS market) or to oligopolistic collusion analogous to price-fixing. Neither of these are a product of the licensing concept itself.
Slashdot Mirror
I don't care what you think of me. If you think I'm a moron, and it causes you to vote, I am ecstatic that you think I'm a moron.
And speaking of "blaming the victim," I hear an awful lot of that on Slashdot in other contexts. Aw gee, too bad you got rooted, shouldn't have had your ports open, etc. People here seemingly have no problem understanding that a security lesson can be learned from even the most malicious of system intrusions, provided the victim educates him/herself and takes appropriate precautions in the future. All I'm trying to do is show how that principle applies in the contractual context as well.
One likely reason that Weisstein failed to obtain legal advice in advance of litigation, when it actually could have helped him avoid this situation, is ignorance about what lawyers really do. Businesses and business people of all types, small and large, routinely obtain legal advice before entering into contractual committments. Hiring a lawyer to review a contract is not, as you suggest, a signal that one is going on the warpath, or a manifestation of hostility to one's fellow man. It is, rather, the equivalent of hiring a security consultant to attempt unauthorized entry to your system, and advise you of needed security measures - a prudent precaution.
Don't you want to know whether your network has holes in it like a sieve? OK then, why would you not want to know if your contract has holes in it like a sieve? And why do you consider it detestable to hire an expert to provide you with that information? It's prejudices like yours among the sci-tech crowd that render the Eric Weissteins of the world so vulnerable to this type of exploitation.
Now you're probably looking at my sig and thinking "what a shameless plug by a sleazy lawyer trying to drum up business." But I am primarily a litigation attorney. I can (and do) make a hell of a lot more money representing one side or the other in protracted, expensive misery-inducing litigation than I could hope to make by doing three-hour book contract consultations for legally-naive techno geniuses, even if half the people on /. became my clients. But I feel this sense of grief and waste often, even in dealing with my existing clients - I wish I could tell them: "if you'd gotten legal advice at the outset of this situation, or paid heed to the legal advice you did get, you wouldn't be in this pitched battle today."
Please, please, take this case as an example. Cut yourself some slack, and consult an independent lawyer before signing any agreements. Don't count on your "editor" for legal advice. Listen politely when someone says you can ignore all the fine print in their contract because it's just "boilerplate" -- then say, "yes, I know all that stuff is legalese. So I'm sure you won't mind if I have a lawyer look at it, and get back to you." Any reputable company will permit this, and even respect you for it. On the other hand, if they raise a stink, that ought to tell you something right there . . .
the site's jammed up, and there's only 10 posts up here. Seems as though every single /.er just flew immediately to the site to see with their own eyes (ok, I admit I did.)
I hope whatever license agreement they had to work out to get the site back up isn't "per hit."
Yes, I'm going to contact the attorney general of my state immediately and let him know how I feel. But even though I vote in every election, my own voice is cheapened and weakened by the huge numbers of people who don't. Why should an elected official listen to me, rather than a contributor, when the overwhelming statistical odds are that I am among the huge pool of incorrigible non-voters who have surrendered all power over their government's actions? Even if I announce that he/she's "got" or "lost" my vote next time, odds are that's not true.
I know, I know, this is another one of my "granny knows what's good for you kids" rants. But think about it, please. What if next election there were an 80% or 90% turnout? You could actually fire your state's attorney general for sucking up to MS and taking this ridiculous settlement! Imagine that. Are you so absolutely sure that voting would have no impact? Are you so positive that you won't even bother to try it, thereby guaranteeing business as usual? Probably (sigh).
I have a new idea, which I'm going to practice starting with the next local election. Our state's ballots have little square tear-off tabs. They don't show who you voted for, just the fact that you cast a ballot. I'm going to save mine and scan them, so that I have a permanent record of every election I've voted in, which can be printed out and mailed, or sent as an email attachment. Thus, when I contact an elected representative to express my opinion, it will be accompanied by a concrete "voting record" -- evidence that I care enough to back my opinion up with my vote.
If this practice became widespread, it might be quite effective, not only in empowering communications between technologically-informed citizens and the government, but in exerting some peer pressure against the huge non-voting majority. Like, if voters carried their voting records around all the time, then if someone was really whining about how the government never listens to us, we could all whip out our voting records and say "let's see yours." It could become shameful to protest government action without a voting record to throw down when one's bluff is called; shameful enough that Americans actually start exercising the democratic rights we purport to stand up for. Ok, I'm a dreamer, but I'll keep trying. I believe in a democratically elected government, for Afghanistan, Iraq, Saudi Arabia and . . . what the heck, maybe even the USA for a change.
I do audio recording on my PC, among other things. 30 dB difference in background noise is a lot. I have a CoolerMaster aluminum case, which I formerly ran with stock fans and power supply - the thing was cold, sure, but the 5 fans and the power supply were significantly loud when recording. Recently I replaced them with Silencer fans and one of the quiet power supplies (I forget which). Also I got a Volcano cooling fan for the Athlon, which was advertised to be quieter than average. It's not exactly silent yet, but there's a noticable reduction in noise, so I can actually have the mike within a yard or two of the PC without picking up the fan drone. Also, I have no heat problems to speak of, even though I am somewhat overclocked (1100 to 1200) and my virtual synth software places a high load on the CPU.
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Funny, funny. But really, you couldn't accomplish a continuing intrusion that way. Chopping people up is rather noticable, bodies laying about and all. The real value for an intruder of rooting a system is keeping it rooted for an extended period, while undetected. Seems the same would be true of rooting a secure area. Like, even in a nuclear power plant where gaining entry to the area would theoretically allow the intruder to accomplish a one-shot destructive act, don't you figure that repeated access to the area would be necessary for the intruder to learn the proper procedures and codes? He/she'd want to plant cameras, bugs, etc., then come back. That severed arm is not going to be re-usable for that purpose, as poor Joe who turned up armless and dead is off the access list immediately.
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Is it really that difficult or costly for companies to implement things like retinal/iris scan, voice printing, etc. for highly secure areas? I've always felt we can have no true security based on things like ID cards (lendable and counterfeitable), passwords (crackable, write-down-able, storable), and human security guards (con-able). It would be rather intrusive and expensive, I'm sure, to implement biometric scanning for every person entering a public building, but if the critical security areas of that building were restricted to root users via biometrically automated door locks, breaches of mundane perimeter security would be less threatening.
OTOH, I'm sure someone will reply that biometrics has a weakest link as well. E.g., intruder could corrupt a root user and get their retina authorized into the system illegitimately, figure out some kind of black box to hold up to the scanner, crash it to its embedded version of shell prompt, and send it "unlock door" command, etc. But from my perspective, biometrics kicks the ass of any other solution, and I'd feel a lot safer if airports, highrises, and public utilities were using it for critical areas.
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Win the war against the British, who were actively in the process of slaughtering our liberty-inclined ancestors.
Likewise, we are now faced with an enemy who so reviles our nation that he has ordered his followers to murder all Americans, wherever they are found. (don't believe me? read the fatwa.) If we fail to make it our first and foremost priority to win the war against Osama Bin Laden, and prevent his followers from continuing to murder us en masse, we will not be around to exercise the freedoms we so value. Do you think our grandkids will thank us for whining over bag searches at NIH during a goddamn war?!? No, they won't, because they'll be corpses too.
I'm sorry, this is trollish language, but I can't restrain myself. If the original poster of this thread is representative of those working for our government and entrusted with keeping our nation safe, then there is no life or future ahead of us. The USA and the world will be passively handed over to the military dictatorship of Osama-stan by the spoilt, naive, soft weaklings in our government service, who would sooner have vials of Ebola walking out of the NIH, and into the hands of the nation's declared enemies who intend to use them to kill us all, rather than lose 3 minutes off their precious lunch break standing in an inspection line.
We are at war. Get real. The people searching you are trying to save lives. The NIH itself exists for the purpose of trying to save lives. If you don't care about saving lives, work somewhere else. There is nothing unreasonable, invasive or unconstitutional about the searches you've reported, which are obviously directed at the public's safety as well as yours.
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That'll certainly help boost X-box sales. Are you sure Microsoft didn't invent this gadget? Blowing up a competitor's hardware would be very consistent with their other business practices.
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Well, with the disclaimer that I don't know much about how portable MP3 players implement their codecs, is it possible that someone could hack this device and add ogg capability? I mean, unless the MP3 codec is completely hardwired into a ROM, this device contains a processor, memory and bus sufficient to call and run one software codec, so why not another? It seems that if it can serve as a portable hard drive, it must have OS capability sufficient to operate as a file server, and may have a reasonably competent version of OS X running in there. Certainly the hard drive provides sufficient space for such an implementation, and the Firewire port would allow you to load an executable onto the device. And there seem to be many on /. who love hacking such embedded devices. Maybe I'm wrong, but it seems theoretically possible, and people have done some amazing hacks on Palm, etc.
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Your definition of where "sampling" occurs seems like semantics to me. If one does not have software capable of editing and storing a sample at a specific bit rate, the audio hardware cannot "sample" at that quality, whatever its underlying capability. A theoretical "sample" sitting in the audio hardware without software that can make use of it? Cmon, really . . . this is like "when a tree falls in the forest, and no one hears, does it make a sound?"
And, in any event, your response is irrelevant. The original poster was scoffing at the Sound Forge editor -- a software package -- as insufficiently "pro audio" to qualify for this discussion -- a discussion of software packages for Linux with pro audio capability. As I am familiar with and use Sound Forge, my reply pointed out the high audio quality capabilities of Sound Forge, and asked what software could do better. (As expected, no response.) According to your theory, all software would be "pro audio" even if it dithered every sample down to 12K rate or even less, because only the quality of your hardware matters. Ha.
(By the way, my audio hardware is an Echo Layla 24/96.)
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Sound Forge Pro samples in 32 bit and over 96,000 sample rate -- that is not "pro" anymore? If not, I'm amazed. What do you have that can do better? I would really like to know about it.
I'm not going away anytime soon, although I'm sure I'll be posting less often when my workload picks up. (I'm in about a 4-week slump which I hope is temporary.) Just as I wish more lawyers were technically literate, I wish more technology professionals were legally literate. The latter, perhaps I can do something about. The quality of debate (and, incidentally, the potential political influence of those participating) is improved thereby.
Now, about your random testing proposal for the criminal justice system. I suspect, once you think about it, you'll realize you don't really mean it. Your proposal would subject no less than 4000 human beings to potential criminal charges and penal consequences, at "random," for the sake of "testing." I'm sure you'll acknowledge that, at least in this respect, human beings are qualitatively *different* from mere data input. Data can be thrashed, crashed, screwed, blued and tattooed for testing purposes, because it doesn't suffer, wince, or file lawsuits.
And there you have the principal problem with systems analysis of human-relationship systems such as our legal system. They are not objectively testable without violating the moral code that makes us want to test them in the first place. If you wonder why "The Law" seems less consistent and rational than C++ code, consider that there is no morally acceptable human counterpart to the debugger.
I agree, though, that the criminal justice system penalizes the "poor and the black" (and brown, and even not-quite-white) disproportionately. There are many proposals for how to remedy this situation. I think monitoring of racial profiling, and availability of DNA testing to convicts/suspects, would be good steps toward equity. However, I think that the legal system only reflects and concentrates the prejudices of society at large, so I think a more systemic purging is necessary to correct this problem.
(P.S. - I'm posting without the "bonus" because I'm veering a bit off-topic.)
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Your analysis of the DOJ's involvement is certainly logical, but not correct. When a private party brings a court action that calls into question the constitutionality of a law, typically the government agency charged with enforcing that law is named as a defendant. For example, if I'm a gun rights organization suing to get a U.S. gun control regulation thrown out as violating the Second Amendment, I'd probably name the Bureau of Alcohol, Tobacco and Firearms as a defendant. Even if I *didn't* name the ATF as a defendant, it would be allowed to ask the court's permission to "intervene" in my suit as a defendant, if the ATF felt my suit was contrary to their interpretation of the regulation, or just because they want to defend the regulations they enforce in court.
I don't know whether the DOJ was originally named as a defendant in this case, or whether it intervened. But in either event, its presence in the suit does not "suggest that some kind of criminal affair is going on." The DOJ may very well be interested in forcefully advocating the position that Dr. Feltner's academic pursuits are NOT criminal. No, really -- I'm totally serious. A law that broadly criminalized aspects of academic instruction would almost certainly be tossed out on constitutional First Amendment grounds. If the DOJ feels that any aspect of the DMCA is a useful tool, it would want to urge the court to adopt a so-called "limiting construction" of the DMCA that would preclude its future application in an unconstitutional way, thus saving it from complete invalidation.
As for whether the "legal system" will apologize to Dr. Felten and reimburse him for his expenses after "dropping the case," don't forget that Dr. Felten is the plaintiff who brought the case in the first place. Don't get me wrong - I think the RIAA's pressuring gave him valid grounds for seeking legal action. But at this point, the only person who has the power to "drop the case" is Dr. Felten.
I believe the real point of your inquiry is the unfairness of burdening private citizens with onerous legal fees, simply because they oppose a law they believe is unjust. However, although the "American rule" normally requires each party to pay his/her own legal fees, there are exceptions to this rule where the litigation opponent uses abusive tactics or takes a substantially unjustified position, where the litigation confers a public benefit, and where (as here) a private citizen litigates against a government opponent. These exceptions do not always prevent the unfair results that concern you, but they are a step in the right direction.
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This legal doctrine stems from the Constitutional limitation of US courts' jurisdiction to a "case or controversy." The judicial branch lacks jurisdiction to offer "advisory opinions" on how a law is to be interpreted, or whether it is constitutional. They don't have a general power to pore over the output of Congress and issue rulings on it. Rather, there has to be an actual controversy between opposing parties, which gives the judicial branch jurisdiction to decide questions of statutory interpretation or constitutionality presented thereby.
Ripeness, typically, is applied to cases that challenge the constitutionality of a law "as applied" to a particular set of facts, but before the agency charged with enforcing the law has actually applied the law in that manner. It is essentially a challenge to the judicial branch's jurisdiction - asserting that there is not yet an actual controversy. Looked at another way, analysis of a law's future hypothetical applications is too abstract for any court to perform reliably, and is therefore "non-justiciable." (Contrary to some comments, justiciability is not a made-up word, it's a well-settled legal doctrine.)
Although I've not read the DOJ's papers, I would expect their ripeness challenge to be along these lines: "We are the agency charged with criminal prosecution under the DMCA. We've never prosecuted or even threatened to prosecute the professor who is the plaintiff in this suit. Nor have we prosecuted or threatened to prosecute under the DMCA *any* member of academia on the basis of an academic presentation. Hence, there is insufficient basis to conclude that the DOJ would ever apply the DMCA to criminally prosecute academic speech, and this action is therefore not ripe."
That argument would normally be a strong one, and if you think about it, it makes sense. Virtually everyone who posts here is worried that someday they might be prosecuted under the DMCA, but until that happens to you, or there's a credible threat that it will happen to you, you don't have a lawsuit. The professor's case is modestly different, because the RIAA threatened to pursue charges against him. But as a private party, the RIAA cannot bring criminal charges unless the DOJ decides those charges are well-founded. Apparently, it has not so decided - hence, the ripeness challenge.
But wait -- don't give up hope yet. This is a First Amendment case, which opens up some other possibilities. A First Amendment challenge to the constitutionality of a law can be brought, not just to the law "as applied" to a particular set of facts, but to the law "on its face." The basis for a "facial" challenge is the "chilling effect" that an overbroad statute may have on speech, even if the speech itself is never prosecuted. Since free speech is highly valued, courts will apply this level of scrutiny to a statute that creates a substantial likelihood that worried people will voluntarily curtail their own protected speech, even if they are never prosecuted. In essence, it's a ripeness exception.
That argument ought to have a fair chance of success here. (Don't forget that the DOJ's mere motion does not decide the issue - the plaintiff gets to file a brief opposing the motion, and the judge makes the decision, not the DOJ.) A, the RIAA threatened to pursue criminal charges under the DMCA, and B, the professor cancelled his presentation as a result. Even though the DOJ has never actually applied the DMCA in this manner, if the judge looks at the "face" (the text) of the DMCA and finds that it could be construed to criminalize what the professor planned to do, the judge should find that the DMCA has an unconstitutional "chilling effect" on protected academic speech, and deny the DOJ's motion.
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Don't feel bad. Your comments were not as inaccurate as much of the pop folklore that passes for legal knowledge on /. and the internet in general. Gives me a reason to exist, and provides a springboard to circulate more accurate information. Plus, if I were to make some inaccurate statement about technical subjects I'm not trained in, I bet that 100 people would correct me, and they should.
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both legal remarks not exactly correct (nothing personal).
Under the Brooke Group case, decided by the US Supreme Court in about 1995, oligopolistic collusion to dominate a market can constitute an antitrust violation, even though none of the players has sufficient market power on its own to constitute a monopoly.
You're partially correct in that abusive business conduct might also form the basis for a RICO claim. However, you need certain specific "predicate acts" to support a RICO violation, and although criminal infringement of a copyright is a predicate act, misuse of a copyright is not. So I wouldn't be too quick to assume that this is just the "reverse Napster case" here.
RICO also comes in *both* civil and criminal flavors. Criminal RICO charges would have to be brought by the Justice Dept., and although the penalties sound scary, don't forget that the wheels of government turn slowly, and there's an awfully high burden of proof to convict someone of a crime. (And also, I suspect they're quite caught up in other stuff at Justice right now.)
In contrast, civil RICO claims can be brought by any individual/company who claims to have been "injured in business or property" by the RICO violation. A successful claimant is entitled to treble damages, so although it doesn't sound as threatening as criminal charges, civil RICO is no little mousie.
Oh, thanks for the English tutorial, Mr. Split Infinitive . . .
um, you'd *better* figure out how to make them play video, or at least sound. Afghanistan has one of the lowest literacy rates on the globe, and it's gotten even lower since the Taliban took over in 1996 and banned women from going to school.
I know, I know, it's just Katz rabble-rousing and I should lower my expectations, but what is the basis for this statement:
"Most Americans are convinced that technology -- GPS targeting systems, thermal imaging, new intelligence retrieval systems, pilotless drone reconnaisance aircraft, high-altitude bombers, special forces equipped with goggles than can see into caves -- will carry the day for us. Will it? What can technology really do for us in this new war?"
Everything I have read, viewed or heard in the media, every poll I have seen, and every live human I have spoken with in the weeks since September 11 supports precisely the opposite proposition - the general public DOES NOT BELIEVE that technology gives the US/Allies the advantage in this war; it will be won, if at all, by traditional human intelligence, gritty casualty-producing ground combat, determination, and patience. And I don't hear anyone underestimating the low-tech Afghan mujahedeen.
Where are the "most Americans" who believe this is a magic tech silver bullet war? I don't see or hear them anywhere.
Better get good recon on those "8000 Taliban at the Uzbekistan border." Ask yourself why the Taliban made such a point of *announcing* this supposed troop move to the world. How much you want to bet they moved 8000 civilians up to the Uzbekistan border and set up a refugee camp, then deliberately enticed the USA to bomb the area, so that they could trumpet the USA's barbaric killing of civilians to the world?
Oh, y'all think the Taliban wouldn't slaughter thousands of peaceful Afghani civilian Muslims to maintain power? Wouldn't murder their country's own women and children?
Sigh. How do you think the Taliban got control of Afghanistan in the first place? And how do you think they keep it?
The Taliban are rivaled only by Saddam Hussein as the most prolific murderers of Muslim civilians in modern times. Too bad we didn't give a damn unless and until this monstrous band of dictators turned its underground killing machine on *our* civilians. We unilateralist, washed-in-the-blood-of-the-Cold-War, surfing-the-tech-boom "Americans" were just too comfy to pay much attention. International news doesn't sell. Run more footage on Chandra Levy and shark attacks, please.
Here are some thoughts for today:
"Let the word go forth from this time and place, to friend and foe alike, that the torch has been passed to a new generation of Americans; born in this century, tempered by war, disciplined by a hard and bitter peace, proud of our ancient heritage, and unwilling to witness or permit the slow undoing of those human rights to which this Nation has always been committed, and to which we are committed today at home and around the world.
"Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and success of liberty. This much we pledge, and more. To those old allies whose cultural and spiritual origins we share, we pledge the loyalty of faithful friends. United, there is little we cannot do in a host of cooperative ventures. Divided, there is little we can do; for we dare not meet a powerful challenge at odds and split asunder." John F. Kennedy, January 20, 1961.
Forty years have come and gone, and we, the Americans to whom Mr. Kennedy spoke, have done everything with that global commitment except honor it. We stained it with the ignorance and dishonesty of the war in Vietnam. We abused it propping up bloody dictatorships in South America. We called ridicule upon it by watching in silence while both Israel and Palestine reneged on their promises. We spat on treaties with our European allies, and walked out of global human rights conventions. And though many noisily proclaim that our government takes these actions despite our opposition, the numbers don't lie: more than half of us don't vote, and some even brag about the fact.
Despite all this, our allies seem to be welcoming us back to the world community. Let's not blow it this time, my fellow Americans. Keep those ration drops and radios coming. Stuff the Taliban back in the holes they crawled out of and help Afghanistan institute democracy. And then, let's continue acting like global citizens for a change. It's not too late.
(my sarcasm is not directed at your post, BTW. A rant was bottled up inside me.)
The increasing number of overbroad patents in the software/internet area does not promote innovation, it stifles it. I don't think it's true any longer that patent applicants have incentive to police their own applications to avoid future patent invalidation - most patents are issued or owned by major players who merely wave the patent and make a big noise, confident the other guy will go away without a fight.
Is there any support in government circles for an overhaul of patent office procedures, to address the anti-competitive effects of making things like "clicking" and "linking" patentable?
I don't think the concept of a EULA itself is anti-capitalist. It's simply an "end user license agreement," which is a limited bundle of rights that you purchase - the content of that bundle of rights may vary from one licensor to another. Even though it's not intuitive to think that way, when you buy a car or a plot of land you are also buying a bundle of rights defined by law. "Yeah, but I own the car and can resell it or do anything I want with it!" Well, yes you can resell it - that's part of the bundle of rights you buy with the car. But you can't do anything you want with it, even though it's "your" property. You can't park it on the sidewalk. In some neighborhoods, you can't even park it on your own front lawn, even though the car and the lawn are both "your" property. And you can't run over me with "your" car, even if I'm standing on "your" lawn. And even the most fundamental, traditional private property such as a parcel of land can be subjected to restrictive covenants by the seller, which are binding on the buyer and all successors.
In short, private property and what you can do with it is a legally delineated and limited concept, in all its forms. Software licenses are not qualitatively different.
The real question to ask about EULAs, from a capitalistic perspective, is "why are the EULAs all the same" and "why do they keep getting uniformly more restrictive." In a healthy competitive environment, the desire of intellectual property holders to increase profits by imposing more-restrictive EULAs would be offset by the danger of losing customers to competing IP holders offering less-restrictive EULAs. Where you see the opposite behavior for an extended time period, you are looking at a market where normal market forces are not operating. This can be due to abuse of a monopoly (as with MS in the OS market) or to oligopolistic collusion analogous to price-fixing. Neither of these are a product of the licensing concept itself.