Re: constitutional right to privacy? Where?
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A New Kind of War
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The US Constitution (unlike some US state constitutions) doesn't guarantee "privacy," it doesn't even use the word. The US Supreme Court, starting in the 60s, in a case called Griswold involving birth control, created an implied constitutional right to privacy, saying that it was an "emanation" from the "penumbra" of the Fourth Amendment's ban on unreasonable searches and seizures. The Roe v. Wade abortion decision was a product of this jurisprudence. For the last 20 years, the anti-abortion right wing has been driving the Supreme Court to retreat from the privacy right they created, and for the most part the Court has obliged the right wing.
In other words, the so-called absolute constitutional right to privacy that people are now defending on/., often quite vitriolically, doesn't exist. To the extent it ever existed, we gave it up in order to persecute women who have abortions.
So what does the US constitution actually say that's relevant to our current dilemma? Well, the Fourth Amendment does protect us against "unreasonable" searches and seizures. Wiretapping, mail reading, and other forms of snooping are limited by this provision. The limitation only affects those privacy-violating searches deemed "unreasonable," and the reasonableness of a search is determined in part by its purpose and circumstances.
So you were correct in spirit, if not in letter, in suggesting that the US Constitution bars only privacy-violating searches that are "unreasonable" under the circumstances. I think/.ers who adamantly insist that they will not accept even minor, temporary incursions on their privacy in order to curb terrorist acts are being naive, as well as short-sighted. It makes them sound like they value every crappy little email they send far more than they value 5000 human lives. This sort of extremism will only make it harder to convince Congress, etc. to stand up to protect our privacy in a rational, ongoing way.
However, I do disagree with your statement that "the creators of the Constitution never could have forseen the kind of cowardly attacks we faced recently," such as "the 'impenetrable' United States [being] attacked on its own soil." The US was in fact attacked rather successfully on its own soil during the war of 1812 - the British virtually burned Washington DC to the ground. Certainly some of the Constitution's authors were still around when that happened, and there's no record of them crying out "Oh my god - we've been attacked on our own soil? Better throw out the old Constitution and get a new one."
I am not defending this proposed law (it sucks, is stupid and embarassing to the USA, and is unenforceable and probably unconstitutional for a number of reasons). Nonetheless, I don't think your First Amendment analysis is correct. If you read the applicable precedents, a law is a "prior restraint" on speech where it creates a mechanism for the government to intervene and stop the speech before it reaches the intended audience. The paradigm "prior restraint" is a government censorship board, that must review and decide the suitability of all books, movies, etc. *before* they can be shown to the public.
I see nothing in this bill that authorizes the enforcing agency to take that type of advance action. Instead, it appears to be an example of the more routine "subsequent punishment" enforcement scheme, where a violator gets punished after the act occurs. "Subsequent punishment" laws may still violate the First Amendment for other reasons, but not because they're "prior restraints" on speech.
(This may be a bit of a technicality, but I get touchy about such things, because so many of the legal truisms that are passionately espoused these days, particularly on the internet, have no basis in the actual jurisprudence. E.g., many people are in jail now because someone convinced them that the US Constitution makes tax paying optional, or some such hogwash. So forgive me a little overreaction.)
Re:eBay is and old idea on new Tech, not so with N
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eBay Beats DMCA
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I wouldn't speak so soon. It's kind of murky because I haven't been able to get the actual opinion yet, but some poster quoted an article as saying:
"The judge agreed with eBay's position that it is not like a real-world auctioneer that vouches for the items on sale, but rather more like a provider of the stalls at a flea market."
Now I am as aware as anyone that journalists often get it all wrong when interpreting legal stuff. But if the opinion says anything of this nature, then the opinion is broader than you and a lot of people are suggesting, and would likely have some precedential effect on DMCA, as opposed to just being a case-specific defect like failure to exhaust remedies. I'm trying to get the full text of the opinion.
Re:This really means MUCH...
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eBay Beats DMCA
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At least in the USA, when a judge "throws out a case" it doesn't just go in the wastebasket. He writes an opinion explaining why he threw the case out. That is no less a legal precedent than any other judicial opinion. What precedents do you think lawyers cite when they go into court and *try* to get the other side's case "thrown out"? That's right, they cite all the judicial opinions "throwing out" similar cases, and try to convince the judge that the case before him/her is like those.
This is, in fact, an important opinion. Anyone have a link to the full text? I am involved in a case that may be impacted by it.
One criticism of the NYT article is that it makes it sound like the legal profession just yesterday caught on to digital discovery and forensics. Although there are always some Luddites out there, lawyers who do major commercial or product liability litigation have been using digital techniques for years.
As far as user-friendly interfaces for forensic-ware, and other suggestions by comment-posters for improving the technologies, don't forget that in order to be useful to a lawyer, digital forensic evidence must be admissible in a court of law. Nobody is going to settle a lawsuit based on some damning piece of deleted email recovered from their hard drive, unless you convince them that the jury trying their case is going to see a big blow-up poster of all the bad things they said in it. In order to get that recovered data into evidence (at least in the USA), the lawyer must "lay a foundation" that the evidence has some reliability. An eyewitness to an event, for example, can testify about things she was able to see or hear from her particular location, but her testimony about what might have been happening out of her eye-earshot is not admissible in court. Another way to lay a foundation is through a qualified expert opinion, for example, an accident reconstruction expert who measures the skid marks and applies a scientific method to determine whether the car was speeding before the accident. The point being, even if I as a lawyer could read up on the relationship between skid marks and vehicle speed, make those measurements on my own, and perform the calculations just as accurately, that would not do me a bit of good. I would still have to go out and retain someone with considerable expertise in such matters in order to get the court to admit the results of the calculations into evidence, or I never get to put them on my blow-up poster for the jury. And this is not just a gimme. Especially in federal court, there are specific criteria for the qualifications that an expert must have, and the demonstrated reliability of the expert's method, before the results can be admitted in court.
So for those of you who are devising tomorrow's user-friendly forensics - a warning. No matter how point-and-clicky you make them, my lawyer colleagues and I will likely never touch them. Even though I am technically literate enough to grep anything you can grep, I'll keep on hiring one of you technical experts when I need some digital forensics done, because I need your experience, credentials and signature to convince a court that the results are reliable and not just wishful computer hokey-pokey by a lawyer who wants her client to win. (Also, lawyers don't testify in their own cases, as a rule, for various reasons.) This is especially true with things that *sound* somewhat unreliable, like recovering from low-level formats and such. The more extrapolation and guesswork is involved in the "recovery," the less likely it is to get into evidence.
And if you're developing a search method, or some other new technique for data recovery, keep in mind that in order to qualify yourself and the technique as proper expert testimony, you're likely going to have to disclose quite a bit about how you did it in order to lay the foundation for admissibility. You can just throw those valuable little trade secrets and patentable methods out the window. That's another reason why legal tech forensic shops tend to rely on things like grep and dd rather than innovating - where's the big payoff? Now if you don't care about admissibility, and are just mining the hard drives of your ex-employees (or ex-spouses, or whatever) for business reasons, maybe that's a different story. But most people don't think they're about to get into a lawsuit until it happens, so I wouldn't be so sure.
Old ideas from an economic perspective, certainly. But from a legal perspective, until the US Supreme Court decided the Brooke Group case, you couldn't win an antitrust case by showing that a *group* of unaffiliated defendants at the same market level exercised monopoly power as a "disciplined oligopoly." Now, at least theoretically, you can.
yeah, I think you hit on a key point there - the absence of competition. In a healthy market, you'd see media distributors vying to sell us a DVD or CD with *more* capabilities, each distributor wanting to snatch away business from the other. What a bassackwards mess of a market we have here, where distributors compete with one another to offer the *least* capable product. They even have downloadable movies now that dissolve after you view them once, like the tape message on Mission Impossible going up in smoke.
The really weird thing is, how did it get this way? It's not like Standard Oil or Microsoft, where all the components really have the same owner and form a single monopoly, vertically, horizontally, diagonally, or whatever. Even if you forget the individual artists, directors, etc. and just go to the studio level, there are enough different players that there ought to be competition. I suppose you could call this a "discplined oligopoly" (this concept was invented by the US Supreme Court in a tobacco antitrust opinion about 5 years ago), because the trade organizations are the ones who lobby, take legal action, etc., which basically locksteps all the content distributors together into a single unit.
I don't have time to think it through completely today, but one thing is clear. Something in this situation violates antitrust law. If it didn't, you wouldn't have this paradoxical race-to-the-bottom by companies who are natural competitors. The market is broken. I wonder if anyone has considered a legal challenge to the DMCA from an *antitrust* perspective, rather than via the copyright department which seems to be under the industry thumb right now. (Along with the patent office - think of all the ridiculous patents like one-click that have been issued.) The actual target would have to be the industry organizations such as the MPAA and RIAA, of course, not the statute. Maybe someone has tried this already, but I haven't heard.
Yes, I agree more is coming, and the Brazil patent announcement was an exciting move. I think it's likely that the various competing forces in modern intellectual property rights will be forced to work out their differences in this context, rather than in the music context where it's currently the hot topic. Face it, no government on earth, no matter how democratic, really cares whether its citizens have the right to share music or movies, copy them from one device to another, etc. It sounds too much like "free as in beer" to them. But governments do have an interest in ensuring that they, and their citizens, are not unduly beholden to a foreign power, including MS or an AIDS drug maker, and they have no trouble understanding that this equates with "free as in speech."
I think we're seeing the leading edge of an international movement to reject the USA copyright-patent paradigm wherever important national interests are at stake. It's mostly coming on to the global policy makers' radar screens now through China's attempt to join the WTO, because US interests are pressing China to crack down on mass-market software copying and fall in step with the US copyright paradigm. But the China stuff is like the MP3 stuff - Chinese computer makers are copying en masse because it's free beer and helps their profit margins, not for some national interest. Heck, they don't even HAVE free speech in China, so they're in a poor position to couch this as a human rights issue for global concerns to rally around.
But once you get a critical mass of Brazils publicly and officially declaring that US patents are fine for the US, but not fine where they hurt our citizens, you gotta believe some serious powwows among the diplomats and international-law-and-treaty types are going to occur. I think it's especially likely given that the current US administration's profligate rejection of international agreements has weakened its ties with allies. Same influence is created by the open-source policies which are the main topic here - they pressure the US on copyright the way Brazil's pharmaceutical decision pressures it on patent. And the bargaining positions of the world's Brazils is going to be this: "USA, either you overhaul your intellectual property rules so that they cut us more slack, and let your corporate citizens settle for a smaller share, or we will not enforce those rules in our country, and your corporate citizens will not get any share at all." Those modifications will bleed over into domestic law, and that, my friends, is the beginning of the end for the DMCA and like schemes. Overreaching leaves even a great power vulnerable - this is in Sun Tzu's Art of War, I think.
(yes, I'm from the USA, but I voted for the other guys.)
Yes, it's true that you can make "special contractual arrangements" that expand the employer's rights to your work, as well as reduce them. It sounds like that was the intended effect of the employment contract your father in law signed. But if you don't sign anything, I believe the rule is generally what I said. I also think that, despite the more-reasonable language of your own contract, if you came up with a better method of producing your company's products, you would be in danger of getting sued even if you did it on your spare time. That's because you would have difficulty convincing a judge and/or jury that you didn't use the company's ideas or information (which is forbidden by your contract) in coming up with your better way. But legally speaking, that's an issue of contractual interpretation and your credibility as a witness, not copyright law. I don't know how it is in Denmark, which is where this thread started, but in the USA it is possible to alter most legal rights by private contract, and that includes copyrights. You could think of the general rule as something like a "default setting" - the rights you get if you don't touch anything. When you specify an allocation of rights in a contract with your employer, that's a "custom setting" that overrides the copyright default setting.
Now it's true that there are some rights that courts will not let you contract away. For example, if I sign a contract that purportedly makes me your slave and property, that contract would not be enforced by a court even if there was strong evidence that both sides understood what they were doing when they signed it. I wonder whether if your father-in-law had been in a court, instead of stuck with an arbitrator (the arbitration agreement is probably something else he signed when they hired him), a judge would have considered such a broad grab of intellectual rights by the employer as contrary to public policy, and refused to enforce it. There is really something disgusting about the idea that a defense contractor owns every idea in the mind of their boiler operators, because it's not part of a boiler maker's job to come up with ideas for their employers. If my employer (a law firm)asked me to sign a contract stating that any legal writing I do during my employment belongs to them, even if I do it on my own time, I think that would be justified, because they are paying for my full professional capacity for legal thinking, and I can see how they want to be entitled to my full output. But a boiler operator isn't pissing away his capacity to boiler-operate by creating an invention on his own time. I think some courts could be convinced to throw out such a contract, although I haven't looked at employment-contracting issues in quite some time.
Yes, it's automatic via authorship in the USA, although I believe it formerly was not. I think the poster may be confusing the "copyright notice" (which is commonly placed on copyrighted material to clarify that it's being distributed subject to the author's copyright, rather than being released into the public domain) with the copyright itself. There is an additional USA procedure called "registration," which you need to do in order to bring a lawsuit on your copyright, and also registration is helpful in the dispute itself (e.g., it places a time stamp on your claim of authorship.) But the copyright itself exists even if you never register. There is one exception called the "work for hire" rule. If you author something as part of your employment duties for your employer (like software if you're a programmer) then the copyright automatically goes to your employer, unless you make special contractual arrangements. But if you write a song in spare time, that's still your copyright, because it's not what the company hired you to do.
Additional disclaimer - IAAL, but not a copyright specialist.
Symlinking is exactly how I do it under Netscape 4.old. But Mozilla doesn't give you the option to choose a bookmark file in the first place, unless it is hidden in some dot file but Windows stuff doesn't usually have that. The function is certainly not where it's usually found ("edit bookmarks" pulldown.) So whatever you do with the relevant "file" is irrelevant, because you can't tell Mozilla to use that file for bookmarks. I'm not saying there is not some kludgey way to trick Mozilla into using my bookmark file. But if Mozilla wants to be Netscape 6, its browser should provide the minimum functions that the Netscape series of browser has provided. They have glossed over the need to provide what people expect from a modern browser, which was the problem with the 4 series of Netscape in the first place. They should have finished the 6 browser with complete functionality so that people could migrate to it (including stuff like javascript that other people are more concerned about), then added stuff like email and news later as packages. Do they really think that lack of email is what matters, as opposed to being able to migrate from NS 4.old to Mozilla without having to get all bent out of shape about it. If I trip over some simple function that doesn't "work" in the stable version, I am simply not going to adopt it and neither are a lot of other people. Yes it is beta but it has been beta for too long. It has turned into vapor ware.
It's exactly this lack of simple things that keep me from using Mozilla. One function I must have is the ability to choose/import a bookmark file, since I use both Win and Linux on the same machine and need to share my voluminous bookmark collection between both browser binaries. Currently, the simple "open bookmark file" function is absent from Mozilla, so there is no way to do this. Exactly how hard would this be to implement? Seems like it would take five minutes. Unlike others, who have switched to IE for Win, this doesn't help me either because IE doesn't exist for Linux and import/export between IE and Netscape screws up the bookmarks. So I am still stuck on NS 4.whatever.
Games could and should incorporate an online help and manual reader into their interface, thereby eliminating the wasted paper, the video klunk of switching to a text reader, and the player's feeling of withdrawal from the game environment. Although I do cherish my collection of paper manuals, as well as long nights reading the manual in bed to study up, I'd give it up for a full-text searchable utility that looked and felt like part of the game. How many times has the index failed me in a paper manual at a critical moment, and then months later I found the answer stashed in the margin of some random section. Searching is golden.
it seems to me just the opposite - if OEMs are being forced to hardwire the OS to the exact motherboard it's sold with, why would I NOT prefer to build my own system and skip the whole annoying thing? I have not dealt with an OEM since Dell in 1992, from whom I purchased a system that I found to be so chock-full of proprietary and incompatible HARDWARE peculiarities from the MB on up (Slackware found an infinite number of ways to gag on it) that I chucked the whole box and started over rather than even attempt to upgrade it. ASUS rules.
(One good word for Dell - the box came with a manual that included many of the so-called "secret" MS-DOS commands. I kept the *manual* longer than I kept the system - I think I might still have it.)
Now thinking about your situation, you don't really have this option because (I think) an Aptiva is a laptop, and there are no big parts houses (that I know of) where you can pick and choose the individual innards of a laptop and slap a custom one together. But I'm wondering why this is still true. You would think if the wheels of competition were operating appropriately in the hardware world, somebody like TC Computers would be neck deep in this business by now. Sure, the learning curve with tinier parts and more sensitive heat issues would be a bit steeper, but that would just stimulate most of us who prefer custom boxes anyway.
This author is not really talking about virtual war. Assuming the contemporary definition of "virtual" as "taking place in some computer-generated environment," his description of Kosovo battle is only computer-generated for one side, therefore not "virtual." Now why can't we do REAL virtual war? Let's just improve on the grognard games and real time Command & Conquer. Make one that replicates each country's terrain, urban and climate conditions and all weaponry of modern warfare. Set up a giant server with ridiculously wide bandwidth at the UN. Each country has to purchase its virtual units and defenses with real money from the server, at the same exchange rates in real life. Or perhaps unit costs can be predicated on goods or labor for poorer countries. Each country has to enter into a treaty stating that it will abide by the results of virtual war, should it occur. And then if war breaks out, it breaks out virtual. It might take a long while for people to get used to it, and of course all the R-wingnuts out there would claim it's part of the global UN conspiracy, but . . .
Yes, that would work very well. What's truly amazing to me is that MPAA, RIAA and the similar companies are flailing at MP3 and Napster in court, in a way that will ultimately be ineffective whatever the legal result, when a few quietly and strategically Napster-proliferated contaminated pop song tracks would probably have more effect. Well, maybe it's not possible to put a virus in an MP3, but perhaps they could be sabotaged in other ways. Like a track at low volume prompting user to turn up knob, followed by speaker-blowing audio burst. Of course, the perpetrating company has to not get caught, or the credibility-destroying effect would rebound against them. (maybe it's not so amazing that it's not been tried on Napster, after all.)
Au contraire. I think the clear message to any company considering Linux is "write a Linux driver, or port it to Linux, or otherwise make it Linux-compatible, and the world will leave your encryption alone." If I were a business I would jump ON, not off the bandwagon.
they probably will be sued. Of course, the mere act of suing doesn't mean the suit is well founded. Do people normally sue news organizations for this type of reporting. nooo . . . But I noticed that Wired News had up a story on the Johansen arrest, for about **** this long. I went back after about an hour to grab the url and send the story to a friend, and it had vanished. Was there a "take the story down or we'll sue you" letter involved? I don't know, but I can guess . . .
I think you yourself left out more than a word - you missed the whole point of the discussion. I agree that the company acted "legally" when it wrote the encryption system, but that has nothing to do with whether Mr. Johansen acted "illegally" by discovering how it works and telling others. Copyright law is not this either/or see-saw where the question whether it's illegal to read and distribute something turns on the question whether or not it was "illegal" to write it in the first place. Under your logically fallacious formulation, every time some college student quoted from a published work in a term paper, the jury would be marched in to decide whether to ban the quote in the paper, or ban the book it came from. But that's not how it works. If I am accused of illegally copying someone else's work, say a music recording or novel or piece of code, I don't have to prove the damn thing was contraband in the first place in order to defend myself. Instead, I need only prove either (1) that what I created was from my original mind and not a "copy" at all, or (2) that my copying was for "fair use" that did not infringe the right of the creator of the original work. #2 is key here. What Mr. Johansen did is no different from what millions of people do routinely and LEGALLY without a care: making a tape recording from legally purchased CDs so that the music can be played on their car stereo. Say I buy a CD - I have in essence bought a license from the holder(s) of rights in the music to listen to the music on it as much as I want. Now say I have a CD player in my house, but not my car, where I only have a tape deck. I make a tape recording, and presto, now the music I legally bought the right to hear can be heard on a different type of machine. That is exactly what the DeCSS does. Illegal? Unethical? "Cracking?" "Theft?" Harmful and dangerous to the music industry? OF COURSE NOT. Good lord. Mr. Johansen's code, like my tape recorder in my house in relation to music, makes it possible for him (and others) to exercise his legally purchased right to watch a DVD movie using a different machine. It is no more illegal than my tape recorder, nor should it be. These are both clearly fair uses under the law.
I think what drives female representation in this industry is exactly what Pyr suggested: a feeling they "belong with computers" and a desire to belong with computers (not people) generated by being a social outcast. But in my opinion it's not that girls experience being a social outcast differently, it's that what makes a girl *become* a social outcast is different from what makes a boy *become* a social outcast. Traditionally (I know this is changing), girls are not expected to demonstrate "mastery" of some wordly area in order to achieve social acceptance. Boys are. An accepted boy must show his merits in some activity (sports is the best example.) But in contrast, girls' acceptance is largely premised on beauty and personality, not achievement. For a boy, the hacking world offers a psychological antidote for his failure to demonstrate the "mastery" that is demanded of boys for acceptance. Whether or not it's acknowledged, he knows he has mastered something. But for a girl, the hacking world may do nothing to remedy the sense that one's physical beauty or personality is deficient. Achieving mastery doesn't compensate for this in a girl in the same way it does for a boy. That, I think, is why you see a growing equality of male/female in use of the Internet (which allows one to transcend one's physical appearance and edit one's personality) but not in geekly fields (which are about mastery). Me personally, I should submit the disclaimer that I am a long-grown-up "girl" who does indeed find solace in seeking mastery of the bit-ly universe (when I have time.) But I'm not sure I'm the typical "girl."
if you created the Cyberspace Jurisdiction (which I think is a good idea theoretically), you would have to do it on a global basis, or at least try. If you got all 50 US jurisdictions to agree to the court of Cyber (sort of like the US Court of Claims), everyone that was pushing the envelope of acceptability and found it important enough would just find a way to go onto a non-US server. Now that I say this, I admit that it would certainly deter a number of people. But not the people we really care about in this discussion, right - legitimate threats from nations?
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The US Constitution (unlike some US state constitutions) doesn't guarantee "privacy," it doesn't even use the word. The US Supreme Court, starting in the 60s, in a case called Griswold involving birth control, created an implied constitutional right to privacy, saying that it was an "emanation" from the "penumbra" of the Fourth Amendment's ban on unreasonable searches and seizures. The Roe v. Wade abortion decision was a product of this jurisprudence. For the last 20 years, the anti-abortion right wing has been driving the Supreme Court to retreat from the privacy right they created, and for the most part the Court has obliged the right wing.
/., often quite vitriolically, doesn't exist. To the extent it ever existed, we gave it up in order to persecute women who have abortions.
/.ers who adamantly insist that they will not accept even minor, temporary incursions on their privacy in order to curb terrorist acts are being naive, as well as short-sighted. It makes them sound like they value every crappy little email they send far more than they value 5000 human lives. This sort of extremism will only make it harder to convince Congress, etc. to stand up to protect our privacy in a rational, ongoing way.
In other words, the so-called absolute constitutional right to privacy that people are now defending on
So what does the US constitution actually say that's relevant to our current dilemma? Well, the Fourth Amendment does protect us against "unreasonable" searches and seizures. Wiretapping, mail reading, and other forms of snooping are limited by this provision. The limitation only affects those privacy-violating searches deemed "unreasonable," and the reasonableness of a search is determined in part by its purpose and circumstances.
So you were correct in spirit, if not in letter, in suggesting that the US Constitution bars only privacy-violating searches that are "unreasonable" under the circumstances. I think
However, I do disagree with your statement that "the creators of the Constitution never could have forseen the kind of cowardly attacks we faced recently," such as "the 'impenetrable' United States [being] attacked on its own soil." The US was in fact attacked rather successfully on its own soil during the war of 1812 - the British virtually burned Washington DC to the ground. Certainly some of the Constitution's authors were still around when that happened, and there's no record of them crying out "Oh my god - we've been attacked on our own soil? Better throw out the old Constitution and get a new one."
I am not defending this proposed law (it sucks, is stupid and embarassing to the USA, and is unenforceable and probably unconstitutional for a number of reasons). Nonetheless, I don't think your First Amendment analysis is correct. If you read the applicable precedents, a law is a "prior restraint" on speech where it creates a mechanism for the government to intervene and stop the speech before it reaches the intended audience. The paradigm "prior restraint" is a government censorship board, that must review and decide the suitability of all books, movies, etc. *before* they can be shown to the public.
I see nothing in this bill that authorizes the enforcing agency to take that type of advance action. Instead, it appears to be an example of the more routine "subsequent punishment" enforcement scheme, where a violator gets punished after the act occurs. "Subsequent punishment" laws may still violate the First Amendment for other reasons, but not because they're "prior restraints" on speech.
(This may be a bit of a technicality, but I get touchy about such things, because so many of the legal truisms that are passionately espoused these days, particularly on the internet, have no basis in the actual jurisprudence. E.g., many people are in jail now because someone convinced them that the US Constitution makes tax paying optional, or some such hogwash. So forgive me a little overreaction.)
I wouldn't speak so soon. It's kind of murky because I haven't been able to get the actual opinion yet, but some poster quoted an article as saying:
"The judge agreed with eBay's position that it is not like a real-world auctioneer that vouches for the items on sale, but rather more like a provider of the stalls at a flea market."
Now I am as aware as anyone that journalists often get it all wrong when interpreting legal stuff. But if the opinion says anything of this nature, then the opinion is broader than you and a lot of people are suggesting, and would likely have some precedential effect on DMCA, as opposed to just being a case-specific defect like failure to exhaust remedies. I'm trying to get the full text of the opinion.
At least in the USA, when a judge "throws out a case" it doesn't just go in the wastebasket. He writes an opinion explaining why he threw the case out. That is no less a legal precedent than any other judicial opinion. What precedents do you think lawyers cite when they go into court and *try* to get the other side's case "thrown out"? That's right, they cite all the judicial opinions "throwing out" similar cases, and try to convince the judge that the case before him/her is like those.
This is, in fact, an important opinion. Anyone have a link to the full text? I am involved in a case that may be impacted by it.
One criticism of the NYT article is that it makes it sound like the legal profession just yesterday caught on to digital discovery and forensics. Although there are always some Luddites out there, lawyers who do major commercial or product liability litigation have been using digital techniques for years.
As far as user-friendly interfaces for forensic-ware, and other suggestions by comment-posters for improving the technologies, don't forget that in order to be useful to a lawyer, digital forensic evidence must be admissible in a court of law. Nobody is going to settle a lawsuit based on some damning piece of deleted email recovered from their hard drive, unless you convince them that the jury trying their case is going to see a big blow-up poster of all the bad things they said in it. In order to get that recovered data into evidence (at least in the USA), the lawyer must "lay a foundation" that the evidence has some reliability. An eyewitness to an event, for example, can testify about things she was able to see or hear from her particular location, but her testimony about what might have been happening out of her eye-earshot is not admissible in court. Another way to lay a foundation is through a qualified expert opinion, for example, an accident reconstruction expert who measures the skid marks and applies a scientific method to determine whether the car was speeding before the accident. The point being, even if I as a lawyer could read up on the relationship between skid marks and vehicle speed, make those measurements on my own, and perform the calculations just as accurately, that would not do me a bit of good. I would still have to go out and retain someone with considerable expertise in such matters in order to get the court to admit the results of the calculations into evidence, or I never get to put them on my blow-up poster for the jury. And this is not just a gimme. Especially in federal court, there are specific criteria for the qualifications that an expert must have, and the demonstrated reliability of the expert's method, before the results can be admitted in court.
So for those of you who are devising tomorrow's user-friendly forensics - a warning. No matter how point-and-clicky you make them, my lawyer colleagues and I will likely never touch them. Even though I am technically literate enough to grep anything you can grep, I'll keep on hiring one of you technical experts when I need some digital forensics done, because I need your experience, credentials and signature to convince a court that the results are reliable and not just wishful computer hokey-pokey by a lawyer who wants her client to win. (Also, lawyers don't testify in their own cases, as a rule, for various reasons.) This is especially true with things that *sound* somewhat unreliable, like recovering from low-level formats and such. The more extrapolation and guesswork is involved in the "recovery," the less likely it is to get into evidence.
And if you're developing a search method, or some other new technique for data recovery, keep in mind that in order to qualify yourself and the technique as proper expert testimony, you're likely going to have to disclose quite a bit about how you did it in order to lay the foundation for admissibility. You can just throw those valuable little trade secrets and patentable methods out the window. That's another reason why legal tech forensic shops tend to rely on things like grep and dd rather than innovating - where's the big payoff? Now if you don't care about admissibility, and are just mining the hard drives of your ex-employees (or ex-spouses, or whatever) for business reasons, maybe that's a different story. But most people don't think they're about to get into a lawsuit until it happens, so I wouldn't be so sure.
Old ideas from an economic perspective, certainly. But from a legal perspective, until the US Supreme Court decided the Brooke Group case, you couldn't win an antitrust case by showing that a *group* of unaffiliated defendants at the same market level exercised monopoly power as a "disciplined oligopoly." Now, at least theoretically, you can.
yeah, I think you hit on a key point there - the absence of competition. In a healthy market, you'd see media distributors vying to sell us a DVD or CD with *more* capabilities, each distributor wanting to snatch away business from the other. What a bassackwards mess of a market we have here, where distributors compete with one another to offer the *least* capable product. They even have downloadable movies now that dissolve after you view them once, like the tape message on Mission Impossible going up in smoke.
The really weird thing is, how did it get this way? It's not like Standard Oil or Microsoft, where all the components really have the same owner and form a single monopoly, vertically, horizontally, diagonally, or whatever. Even if you forget the individual artists, directors, etc. and just go to the studio level, there are enough different players that there ought to be competition. I suppose you could call this a "discplined oligopoly" (this concept was invented by the US Supreme Court in a tobacco antitrust opinion about 5 years ago), because the trade organizations are the ones who lobby, take legal action, etc., which basically locksteps all the content distributors together into a single unit.
I don't have time to think it through completely today, but one thing is clear. Something in this situation violates antitrust law. If it didn't, you wouldn't have this paradoxical race-to-the-bottom by companies who are natural competitors. The market is broken. I wonder if anyone has considered a legal challenge to the DMCA from an *antitrust* perspective, rather than via the copyright department which seems to be under the industry thumb right now. (Along with the patent office - think of all the ridiculous patents like one-click that have been issued.) The actual target would have to be the industry organizations such as the MPAA and RIAA, of course, not the statute. Maybe someone has tried this already, but I haven't heard.
Yes, I agree more is coming, and the Brazil patent announcement was an exciting move. I think it's likely that the various competing forces in modern intellectual property rights will be forced to work out their differences in this context, rather than in the music context where it's currently the hot topic. Face it, no government on earth, no matter how democratic, really cares whether its citizens have the right to share music or movies, copy them from one device to another, etc. It sounds too much like "free as in beer" to them. But governments do have an interest in ensuring that they, and their citizens, are not unduly beholden to a foreign power, including MS or an AIDS drug maker, and they have no trouble understanding that this equates with "free as in speech."
I think we're seeing the leading edge of an international movement to reject the USA copyright-patent paradigm wherever important national interests are at stake. It's mostly coming on to the global policy makers' radar screens now through China's attempt to join the WTO, because US interests are pressing China to crack down on mass-market software copying and fall in step with the US copyright paradigm. But the China stuff is like the MP3 stuff - Chinese computer makers are copying en masse because it's free beer and helps their profit margins, not for some national interest. Heck, they don't even HAVE free speech in China, so they're in a poor position to couch this as a human rights issue for global concerns to rally around.
But once you get a critical mass of Brazils publicly and officially declaring that US patents are fine for the US, but not fine where they hurt our citizens, you gotta believe some serious powwows among the diplomats and international-law-and-treaty types are going to occur. I think it's especially likely given that the current US administration's profligate rejection of international agreements has weakened its ties with allies. Same influence is created by the open-source policies which are the main topic here - they pressure the US on copyright the way Brazil's pharmaceutical decision pressures it on patent. And the bargaining positions of the world's Brazils is going to be this: "USA, either you overhaul your intellectual property rules so that they cut us more slack, and let your corporate citizens settle for a smaller share, or we will not enforce those rules in our country, and your corporate citizens will not get any share at all." Those modifications will bleed over into domestic law, and that, my friends, is the beginning of the end for the DMCA and like schemes. Overreaching leaves even a great power vulnerable - this is in Sun Tzu's Art of War, I think.
(yes, I'm from the USA, but I voted for the other guys.)
Yes, it's true that you can make "special contractual arrangements" that expand the employer's rights to your work, as well as reduce them. It sounds like that was the intended effect of the employment contract your father in law signed. But if you don't sign anything, I believe the rule is generally what I said. I also think that, despite the more-reasonable language of your own contract, if you came up with a better method of producing your company's products, you would be in danger of getting sued even if you did it on your spare time. That's because you would have difficulty convincing a judge and/or jury that you didn't use the company's ideas or information (which is forbidden by your contract) in coming up with your better way. But legally speaking, that's an issue of contractual interpretation and your credibility as a witness, not copyright law. I don't know how it is in Denmark, which is where this thread started, but in the USA it is possible to alter most legal rights by private contract, and that includes copyrights. You could think of the general rule as something like a "default setting" - the rights you get if you don't touch anything. When you specify an allocation of rights in a contract with your employer, that's a "custom setting" that overrides the copyright default setting.
Now it's true that there are some rights that courts will not let you contract away. For example, if I sign a contract that purportedly makes me your slave and property, that contract would not be enforced by a court even if there was strong evidence that both sides understood what they were doing when they signed it. I wonder whether if your father-in-law had been in a court, instead of stuck with an arbitrator (the arbitration agreement is probably something else he signed when they hired him), a judge would have considered such a broad grab of intellectual rights by the employer as contrary to public policy, and refused to enforce it. There is really something disgusting about the idea that a defense contractor owns every idea in the mind of their boiler operators, because it's not part of a boiler maker's job to come up with ideas for their employers. If my employer (a law firm)asked me to sign a contract stating that any legal writing I do during my employment belongs to them, even if I do it on my own time, I think that would be justified, because they are paying for my full professional capacity for legal thinking, and I can see how they want to be entitled to my full output. But a boiler operator isn't pissing away his capacity to boiler-operate by creating an invention on his own time. I think some courts could be convinced to throw out such a contract, although I haven't looked at employment-contracting issues in quite some time.
Yes, it's automatic via authorship in the USA, although I believe it formerly was not. I think the poster may be confusing the "copyright notice" (which is commonly placed on copyrighted material to clarify that it's being distributed subject to the author's copyright, rather than being released into the public domain) with the copyright itself. There is an additional USA procedure called "registration," which you need to do in order to bring a lawsuit on your copyright, and also registration is helpful in the dispute itself (e.g., it places a time stamp on your claim of authorship.) But the copyright itself exists even if you never register. There is one exception called the "work for hire" rule. If you author something as part of your employment duties for your employer (like software if you're a programmer) then the copyright automatically goes to your employer, unless you make special contractual arrangements. But if you write a song in spare time, that's still your copyright, because it's not what the company hired you to do.
Additional disclaimer - IAAL, but not a copyright specialist.
Was this story really submitted by the President of the United States, as the "mail to" suggests? Wow, maybe I was wrong about that Bush guy. (or not)
Symlinking is exactly how I do it under Netscape 4.old. But Mozilla doesn't give you the option to choose a bookmark file in the first place, unless it is hidden in some dot file but Windows stuff doesn't usually have that. The function is certainly not where it's usually found ("edit bookmarks" pulldown.) So whatever you do with the relevant "file" is irrelevant, because you can't tell Mozilla to use that file for bookmarks. I'm not saying there is not some kludgey way to trick Mozilla into using my bookmark file. But if Mozilla wants to be Netscape 6, its browser should provide the minimum functions that the Netscape series of browser has provided. They have glossed over the need to provide what people expect from a modern browser, which was the problem with the 4 series of Netscape in the first place. They should have finished the 6 browser with complete functionality so that people could migrate to it (including stuff like javascript that other people are more concerned about), then added stuff like email and news later as packages. Do they really think that lack of email is what matters, as opposed to being able to migrate from NS 4.old to Mozilla without having to get all bent out of shape about it. If I trip over some simple function that doesn't "work" in the stable version, I am simply not going to adopt it and neither are a lot of other people. Yes it is beta but it has been beta for too long. It has turned into vapor ware.
It's exactly this lack of simple things that keep me from using Mozilla. One function I must have is the ability to choose/import a bookmark file, since I use both Win and Linux on the same machine and need to share my voluminous bookmark collection between both browser binaries. Currently, the simple "open bookmark file" function is absent from Mozilla, so there is no way to do this. Exactly how hard would this be to implement? Seems like it would take five minutes. Unlike others, who have switched to IE for Win, this doesn't help me either because IE doesn't exist for Linux and import/export between IE and Netscape screws up the bookmarks. So I am still stuck on NS 4.whatever.
Games could and should incorporate an online help and manual reader into their interface, thereby eliminating the wasted paper, the video klunk of switching to a text reader, and the player's feeling of withdrawal from the game environment. Although I do cherish my collection of paper manuals, as well as long nights reading the manual in bed to study up, I'd give it up for a full-text searchable utility that looked and felt like part of the game. How many times has the index failed me in a paper manual at a critical moment, and then months later I found the answer stashed in the margin of some random section. Searching is golden.
it seems to me just the opposite - if OEMs are being forced to hardwire the OS to the exact motherboard it's sold with, why would I NOT prefer to build my own system and skip the whole annoying thing? I have not dealt with an OEM since Dell in 1992, from whom I purchased a system that I found to be so chock-full of proprietary and incompatible HARDWARE peculiarities from the MB on up (Slackware found an infinite number of ways to gag on it) that I chucked the whole box and started over rather than even attempt to upgrade it. ASUS rules.
(One good word for Dell - the box came with a manual that included many of the so-called "secret" MS-DOS commands. I kept the *manual* longer than I kept the system - I think I might still have it.)
Now thinking about your situation, you don't really have this option because (I think) an Aptiva is a laptop, and there are no big parts houses (that I know of) where you can pick and choose the individual innards of a laptop and slap a custom one together. But I'm wondering why this is still true. You would think if the wheels of competition were operating appropriately in the hardware world, somebody like TC Computers would be neck deep in this business by now. Sure, the learning curve with tinier parts and more sensitive heat issues would be a bit steeper, but that would just stimulate most of us who prefer custom boxes anyway.
This author is not really talking about virtual war. Assuming the contemporary definition of "virtual" as "taking place in some computer-generated environment," his description of Kosovo battle is only computer-generated for one side, therefore not "virtual." Now why can't we do REAL virtual war? Let's just improve on the grognard games and real time Command & Conquer. Make one that replicates each country's terrain, urban and climate conditions and all weaponry of modern warfare. Set up a giant server with ridiculously wide bandwidth at the UN. Each country has to purchase its virtual units and defenses with real money from the server, at the same exchange rates in real life. Or perhaps unit costs can be predicated on goods or labor for poorer countries. Each country has to enter into a treaty stating that it will abide by the results of virtual war, should it occur. And then if war breaks out, it breaks out virtual. It might take a long while for people to get used to it, and of course all the R-wingnuts out there would claim it's part of the global UN conspiracy, but . . .
Yes, that would work very well. What's truly amazing to me is that MPAA, RIAA and the similar companies are flailing at MP3 and Napster in court, in a way that will ultimately be ineffective whatever the legal result, when a few quietly and strategically Napster-proliferated contaminated pop song tracks would probably have more effect. Well, maybe it's not possible to put a virus in an MP3, but perhaps they could be sabotaged in other ways. Like a track at low volume prompting user to turn up knob, followed by speaker-blowing audio burst. Of course, the perpetrating company has to not get caught, or the credibility-destroying effect would rebound against them. (maybe it's not so amazing that it's not been tried on Napster, after all.)
Au contraire. I think the clear message to any company considering Linux is "write a Linux driver, or port it to Linux, or otherwise make it Linux-compatible, and the world will leave your encryption alone." If I were a business I would jump ON, not off the bandwagon.
they probably will be sued. Of course, the mere act of suing doesn't mean the suit is well founded. Do people normally sue news organizations for this type of reporting. nooo . . . But I noticed that Wired News had up a story on the Johansen arrest, for about **** this long. I went back after about an hour to grab the url and send the story to a friend, and it had vanished. Was there a "take the story down or we'll sue you" letter involved? I don't know, but I can guess . . .
I think you yourself left out more than a word - you missed the whole point of the discussion. I agree that the company acted "legally" when it wrote the encryption system, but that has nothing to do with whether Mr. Johansen acted "illegally" by discovering how it works and telling others. Copyright law is not this either/or see-saw where the question whether it's illegal to read and distribute something turns on the question whether or not it was "illegal" to write it in the first place. Under your logically fallacious formulation, every time some college student quoted from a published work in a term paper, the jury would be marched in to decide whether to ban the quote in the paper, or ban the book it came from. But that's not how it works. If I am accused of illegally copying someone else's work, say a music recording or novel or piece of code, I don't have to prove the damn thing was contraband in the first place in order to defend myself. Instead, I need only prove either (1) that what I created was from my original mind and not a "copy" at all, or (2) that my copying was for "fair use" that did not infringe the right of the creator of the original work. #2 is key here. What Mr. Johansen did is no different from what millions of people do routinely and LEGALLY without a care: making a tape recording from legally purchased CDs so that the music can be played on their car stereo. Say I buy a CD - I have in essence bought a license from the holder(s) of rights in the music to listen to the music on it as much as I want. Now say I have a CD player in my house, but not my car, where I only have a tape deck. I make a tape recording, and presto, now the music I legally bought the right to hear can be heard on a different type of machine. That is exactly what the DeCSS does. Illegal? Unethical? "Cracking?" "Theft?" Harmful and dangerous to the music industry? OF COURSE NOT. Good lord. Mr. Johansen's code, like my tape recorder in my house in relation to music, makes it possible for him (and others) to exercise his legally purchased right to watch a DVD movie using a different machine. It is no more illegal than my tape recorder, nor should it be. These are both clearly fair uses under the law.
I think what drives female representation in this industry is exactly what Pyr suggested: a feeling they "belong with computers" and a desire to belong with computers (not people) generated by being a social outcast. But in my opinion it's not that girls experience being a social outcast differently, it's that what makes a girl *become* a social outcast is different from what makes a boy *become* a social outcast. Traditionally (I know this is changing), girls are not expected to demonstrate "mastery" of some wordly area in order to achieve social acceptance. Boys are. An accepted boy must show his merits in some activity (sports is the best example.) But in contrast, girls' acceptance is largely premised on beauty and personality, not achievement. For a boy, the hacking world offers a psychological antidote for his failure to demonstrate the "mastery" that is demanded of boys for acceptance. Whether or not it's acknowledged, he knows he has mastered something. But for a girl, the hacking world may do nothing to remedy the sense that one's physical beauty or personality is deficient. Achieving mastery doesn't compensate for this in a girl in the same way it does for a boy. That, I think, is why you see a growing equality of male/female in use of the Internet (which allows one to transcend one's physical appearance and edit one's personality) but not in geekly fields (which are about mastery). Me personally, I should submit the disclaimer that I am a long-grown-up "girl" who does indeed find solace in seeking mastery of the bit-ly universe (when I have time.) But I'm not sure I'm the typical "girl."
if you created the Cyberspace Jurisdiction (which I think is a good idea theoretically), you would have to do it on a global basis, or at least try. If you got all 50 US jurisdictions to agree to the court of Cyber (sort of like the US Court of Claims), everyone that was pushing the envelope of acceptability and found it important enough would just find a way to go onto a non-US server. Now that I say this, I admit that it would certainly deter a number of people. But not the people we really care about in this discussion, right - legitimate threats from nations?