The opinion specifically states that the customer can return the software if he doesn't want to agree to the EULA (13866). This is a requirement for the EULA to be binding in this context. There's a fair amount of law on that, so if you ever find yourself contesting a EULA proof that you could not return the software prior to accepting it would be relevant.
Okay, I hesitate to weigh in here, because this isn't going to be a popular question, but did anyone read the opinion? This is, factually, a rotten case for first sale. CTA bought the software and agreed to the EULA which specifically required that they destroy Release 14 in order to get upgrade pricing on Release 15. They paid $495 per license for R 15 instead of the normal $3,750 they would have paid specifically BECAUSE they were required to destroy R 14. Instead they decided to say screw it and they sold their old R 14 copies on the secondary market with the activation codes handwritten on the package. Vernor bought the copies, knowing about the EULA, and then resold them and claimed protection from the first sale doctrine.
Now I'm as gung ho as the next guy about appropriate limitations on copyright (maybe not the next guy here on/., but the average next guy); and in particular I think first sale, like fair use, is an incredibly important protection that's been getting the shaft in the courts lately. But in this particular context -- the upgrade context where the company that poured its dollars into writing better and stronger code is trying to cut its customers a break -- it's going to be a pretty hard sell. Vernor screwed himself here, and unfortunately I suspect he took a lot of other people with him.
Yes, but note that "costs" are not the same as "fees". Court costs are quite minimal -- filing fees and such -- it's not the same as attorney's fees and the other expenses related to litigation.
Incidentally, to clarify the question above, "as a matter of law" means that the question could have been resolved by the judge on a motion to dismiss (without reference to the facts and assuming all facts to be true as alleged in the complaint), rather than on a motion for summary judgment (which relies on statements of "undisputed fact") or at trail by the finder of fact.IAAL; IANYL.
Just quickly, that's only the standard if the person is a public figure. If the person is a private individual the standard is lower and there is no need to prove intent to cause harm. The truth of the statement is, however, an absolute defense in all cases.
Many have commented that this is a suit about lawyers more than about technoogy or even law. That's true in a lot of cases, but this one is especially interesting for law-geeks becaue it pits David Boies (former superstar litigation partner at a New York uberfirm) against that very New York uberfirm, Cravath Swaine & Moore.
SCO has hired Boies, whom slashdotters will remember as lawyer who so skillfully and successfully led the Justice Department's antitrust case against Microsoft and less successfully defended Napster (as well, perhaps, as for his less successful outings in Florida representing then vice-president Gore). IBM has chosen Cravath, its longtime counsel for "bet the company" litigation. Interestingly, Boies made his career as a young lawyer at Cravath by his (successful) work defending IBM against a massive Justice Department antitrust suit in the late 1970s (and 80s, the suit went on for something like 17 years before IBM finally prevailed). There is certainly no love lost between Cravath and Boies and the fight promises to be a fascinating one for lawyers and law-watchers. In any event, SCO's choice of cousel is an extremely canny one, though Boies' typical roster of slashdot-friendly clients has now, one assumes, been somewhat besmirched.
Just a little reality check; there is plenty to argue about here. What almost everyone in this thread seems to have ignored (and what makes the case interesting, despite the tiny dollars apparently involved) is that this is a bankruptcy proceeding. The question is not whether you or I can resell our MS products under the EULA, it's whether a bankruptcy court chooses to ignore the alleged "license" and deem the software an asset of the estate.
It is important to remember that Bankruptcy Courts, unlike ordinary courts, are not required to attempt to enforce the will of the parties to a given contract. Rather, they are supposed to look through the contract and determine whether the terms, as written, create a fraudulent (or otherwise voidable) conveyance. Consider the following: I know I am going bankrupt, but I want to save my Ferrari. I agree to sell it to you for a dollar. You agree not to sell it to anyone else for a year and to sell it back to me in one year for 100 dollars. In return you get the use of the Ferrari. We sign the contract, title passes to you and I declare bankruptcy. A year later I have discharged my debts, I'm free and clear and I enforce my contractual right to buy back my Ferrari for $100. Right?
Wrong. Such a contract would be voided by a Bankruptcy Court and you'd have to give up the car. You'd probably even lose the dollar you paid. The car would become part of estate and would be sold. The money would be used to pay creditors. This is called fraudulent conveyance. It's pretty complicated (and dull) and I can't begin to give all necessary details here but what is interesting about this case is that a court will decide whether the material effect of a purchase of software if to transfer ownership or merely to create a license right, regardless of the language in the EULA.
IAAL, and my guess is the Court will punt on it and come up with other reasons to permit the transfer.
This is extremely carefully worded. It does NOT say that you will be able to send copies of copyrighted materials to friends over the internet. It says the machines will be able to "'talk' to each other". I haven't read the FAQ, but this leaves plenty of wiggle room.
"Talking" in this context might mean sharing programs, but it might also mean sharing programming data only or some other lame restriction. The fact is that, the way the law looks now, a Court could well find that there would have to be a "substantial non-infringing use" for the sharing feature to make it legal. In the context of the ReplayTV units (which I love -- I own one myself) that use would be hard to find. ReplayTV units record essentially only copyrighted material, so the sharing function (outside of a home LAN) would seem to have little non-infringing purpose.
Within a home LAN, an argument could be made that the purpose is "space shifting" -- making legally copied content available in other places in the home for the person who made the legal copy. This is an extension of the "time shifting" rationale used to justify the existence of VCRs in the Supreme Court's seminal Betamax case. "Space shifting" was also found to be a fair use (by a lower court) in the RIAA v. Diamond Multimedia (Rio) case, and is one reason that MP3 players are not actionable.
But the space shifting argument has not been extended in recent cases (either in New York or California, where most of this gets tried, see the various DeCSS cases) so I think the "sharing" feature, if it really does allow people to share copyrighted content with friends in distant locations, would be fertile ground for a lawsuit.
Note that, much as I love 'em, ReplayTV has backed off its promises in the past. It originally told buyers that their personal viewing information would NEVER be collected or sold. It is now clear that such information IS being collected for the my.replaytv.com service. That's fine -- good, even, my.replaytv.com is very cool -- it just happens to be a clear, unannouced change in policy.
Now if they put 802.11b in the thing, I'd pre-order right now.
Bockman, I'd be curious to find out on what you base the assertion that "CD Now cannot _legally_ sell credit card info . . . nor user preferences. "
CD Now has a privacy policy, the relevant portion of which states:
"We will not rent or sell your name, address, email address, credit card information or personal information to any third party without your permission. However, we must cooperate fully should a situation arise where we are required by law or legal process to provide information about a customer." (CD Now's Privacy Policy)
Lets assume for a moment that this constitutes a legally binding agreement between you and CDNow. (A question somewhat up in the air, particularly here in New York, given recent caselaw on click-through licenses). Let's further assume that CDNow violates this agreement if it sells your information. Your option is to sue CDNow for breach of contract and if a court finds the agreement to be legally binding and if the court finds they have breached, you will be allowed to prove your damages arising out of that breach and be compensated. If you live in the US that's probably about $50, the maximum liability you might sustain for fraudulent use of your credit card information. There has never been a successful lawsuit for missuse of "personal demographic information" or "musical taste" or anything like that. Remember here what many lawyers forget: in civil actions, "no harm no foul" is a good defense. Unless you can show with certainty that you have been harmed by CDNow's sale of this information, you have no legal recourse.
Then again, if CDNow goes into bankruptcy, the customer database would likely be considered an asset and sold. This would be ordered by the bankruptcy court, required by law, and therefore exempt from the privacy policy according to the second sentence of the language quoted above.
This is what happened to Toysmart, which sought to sell its customer lists in bankruptcy. It was sued by the FTC and various state attorneys general for the attempt (press release) but the case eventually settled when the Bankruptcy court found that there were no real buyers and Disney (the majority shareholer) agreed to pay $50,000 to Toysmart's creditors in exchange for having the info destroyed (NY AG press release).
The Toysmart case has led to an effort to get a law passed making it illegal to sell private information, but no such general law exists yet as far as I know. Thus it is not illegal (at least in most US states) to sell user preferences. Certain kinds of sensitive information (such as medical records) are protected by state law, and personally identifiable information that has been collected on a user under 13 years old cannot legally be sold (see: COPPA: The Children's Online Privacy Protection Act), but there is no general federal law barring sale of this kind of information.
Just an aside. IAAL, but this should not be construed as legal advice or relied upon for any purpose.
IAAL, but this isn't legal advice and should not be taken as such. I've done some research on this for a client and it is not as easy as "is it a game of skill or not". For example, it is illegal, in New York, to play penny a point bridge or bet with a friend on a round of golf (computer or otherwise). It is also illegal to play games that involve both chance and skill (such as poker) for money in New York and is it illegal knowingly to host such games.
I'm not sure how this company thinks it is going to escape liabilty for violating these laws (which are even tougher in Virginia, for example, than in New York) unless they are located offshore and thus consider themselves immune to prosecution. This raises a number of issues. Many states don't care where your servers are located and will deem the transaction to have taken place at the point of origination of the client as well as at the server. Also, of course, the clients are violating state laws (in some states) by betting on the games even if the "host" is not.
I've tried to find out more about this company and how they address these issues, but the site is a bit evasive. Should be interesting to see how this plays out.
1. The poster who clarified that the AHRA applies to manufacturers, distributers, importers and the like and not to consumers is absolutely right, except that I believe there is a private right of action against individuals who deliberately circumvent the SCMS required by the Act.
2. To the poster who asked about the decision in RIAA v. Diamond, please note that the Court didn't address CD-R's, it limited its holding to the specific case of the RIO which can only download information from an attached computer, it cannot itself convert WAVs to MP3s or rip WAVs or MP3s from CDs. Because the primary pupose of a computer is not to record music, and because the Rio itself can only copy from the computer, the Court held that the RIO is not a digital recording device under the act. (This is an oversimplification, but it's close enough for government work.) In short, RIAA v. Diamond says nothing about the applicability of the AHRA to other kinds of digital devices, Napster clients, or anything else -- it should be interpreted as strictly limited to its facts. You can bet the RIAA sees it that way.
3. To the poster who wrote: "So, thus, the RIAA is basically wrong in their claim that digital recording to computers and the like is illegal?" No! The original poster said that RIAA was claiming that the Audio Home Recording Act of 1992 prevents certain kinds of copying. If they are claiming this, they are wrong. But, and I cannot stress this enough, the Digital Millennium Copyright Act (DMCA) and the plain old Federal Copyright Law (as of at least 1976) certainly do bar certain kinds of copying. The exceptions for fair use (established by statute) and "time shifting" (established by the Supreme Court in the Betamax case) should apply to digital recording in most contexts, so ripping your own CDs should be fine, but that does not mean you can copy other people's CDs with abandon.
WARNING -- OBSCURE AND BORING LEGAL POINT COMING
An intersting (?) aside here: The Ninth Circuit in RIAA v. Diamond ruled that the primary purpose of the Rio is "space shifting" -- that is, copying music that you own for listening to in other places or on the go. The Court held that such "space shifting" was analagous to "time shifting" which the Supreme Court had found, in Betamax was not a violation of the Copyright law. Thus, the Court held that copying to the Rio is a fair use.
This decision is probably a little bit wrong. The Court probably meant to say that copying to the Rio does not violate the copyright law, not that it is a fair use. The distinction is a subtle one that only a copyright practitioner would think of, but the copyright bar has made much of it. Essentially, if a certain use is a "fair use" then there is no restriction on that use, regardless of the source of the original material. For example, parody is the classic fair use. I can copy Mickey Mouse and make a parody of him all I want, regardless of whether or not I own any rights whatsoever in the original image. Thus, if "space shifting" really is a "fair use" it should be legal to copy any material -- regardless of whether I own the original or not. This is almost certainly not what the Court meant, but a lot copyright lawyers who are much smarter than me have argued that that may be the result of the decision as a technical matter. Of course, if that is the case, the Supremes will probably close that loophole eventually.
In this case, of course, even more disclaimers apply. Do not take anything in this posting as legal advice. It is, at best, theory and at worst it could be a dangerous misstatement of the law, depending on who you believe. But if you get sued by the RIAA give me a call.
Also, works of art carry with them so-called "moral rights" and "rights of attribution". The complexities of this area are, as Janus said, manifold, but suffice it to say that you can't necessarily alter a work that you "own" and you certainly can't photograph it and put it on the web. The copyright does not travel with the work unless the work is a work for hire.
Okay, I'm a lawyer who practices in this field and I've written articles on these issues (specifically RIAA's use of the AHRA) for various legal publications, so you can apply grains of salt as you see fit. Also all relevant disclaimers apply: this isn't legal advice and you should talk to a lawyer before you rely on anything in this post as your millage may vary and your situation may be different from the one described here.
Having said that, let's start with the law. Section 1008 of the Audio Home Recording Act of 1992 says:
"No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings. "
What that means, in English, is that individuals cannot be sued (or prosecuted) under the AHRA for making recordings, analog or digital, for non-commercial use.
The act is not designed to prevent people from making recordings (or MP3s or anything else) of their records. What the act does require is that the manufacturers of devices capable of making digital recordings (and also manufacturers of digital recording media) pay the record companies certain royalties for each such device (or unit of media) they sell and, more importantly, that they implement a system called the Serial Copy Management System (SCMS) on every such device. SCMS is designed to prevent people from making multiple generation digital copies from a single original - something that the record companies figure only pirates would want to do. SCMS has been around for 8 years now on every DAT and similar device sold to the public and its not going anywhere.
To answer the "how come I can freely tape my records or TV onto analog media" question, the answer is simple: Congress, with the help of record company lobbyists, has determined that lossless digital copying is not the same as lossy, hiss inducing, analog copying. It has therefore placed restrictions (the SCMS and the above-mentioned royalty) on digital copying. It's not a matter of teaching the "Courts" anything - it's a matter of telling Congress you disagree (if you do).
In fact, for a change, pretty much get it. When the RIAA sued Diamond, they claimed that the Rio MP3 player was a "digital recording device" subject to the terms of the AHRA and attempted to keep it off the market as it did not implement (back then) SCMS or any similar copy-protection scheme. The Court rejected that theory, finding that the Rio was not a digital recording device for the purposes of the Act. An in depth discussion of that case is beyond the scope of this already long-winded post, but if people want it I'll be happy to put it in a separate post.
Summary: The AHRA doesn't prevent you from recording anything. Go ahead. Go nuts. The DMCA is another matter, but that'll wait.
He didn't mean to say that. What he meant to say (to give him the benefit of the doubt) is that Judge Posner is one of the founders of school of legal thought known as law and economics. Law and economics is usually associated with the University of Chicago, where Judge Posner has taught for many years. He and Nobel Prize winning economists like Ronald Coase and George Stigler (among others at the U of C) are credited with much of the research and writing fundamental to the law and economics approach.
To suggest that law and economics views all regulation of the market as bad and therefore that Judge Posner will automatically favor Microsoft is a serious oversimplification. It's worth remembering that Larry Lessig, who was dismissed as special master in the M$ case because of his perceived bias against M$, was a University of Chicago law professor as well.
I got my law degre from U of C and studied under Judge Posner while there, so I felt the need to post something. I'm not sure how I feel about this turn of events and I expect to post more later after I've had some time to think, but it must be noted that, of all the things Judge Posner can be accused of being, he is not stupid. In fact, though many disagree with his views, I can say almost without fear of contradiction that he is one of the smartest people on the planet. This is a very interesting development on which more later.
I don't disagree with the various 'dotters who have suggested that you write a polite letter and attempt various kinds of alternative dispute resolutions, but I would beware of what passes for legal advice here on our beloved/.
I'm a lawyer who deals in these sorts of issues on an almost daily basis and I wouldn't dream of giving legal advice without hearing the details of your specific case so this is NOT legal advice and if you follow it you might get in all kinds of trouble for which I take no responsibility, but I will tell you one thing: you can safely disregard anyone who tells you that what you're doing is an actionable trademark infringement. What you are doing MAY be actionable as dilution, but if, as you say, you are using a disclaimer on every page it's not infringement. The touchstone of trademark infringement is the use of a mark in a way that may cause confusion as to the origin or endorsement of the goods or services offered. You didn't say what International Class "Purdue University" is registered in, but even assuming they have the mark registered for the services you offer, your use cannot possibly cause confusion if you have a suitable (that's a key word) disclaimer on every page.
Most domain name trademark cases, however, aren't about infringement; they are about a more malleable concept called dilution. Dilution occurs where an unauthorized use of the mark causes some damage to the mark's value as a signifier of the goods or services in question. Two important decisions that you should look for (if you decide you want to know what your legal position really is) are the recent Avery and Clue decisions, both of which address the limits of the dilution concept in the domain name area.
Again, this isn't legal advice and should not be relied upon for any purpose. If you end up fighting a legal battle make sure you find a good US lawyer with experience in this particular field. The domain name/trademark legal landscape is changing radically every day and even a good intellectual property lawyer can screw this up unless he or she is practicing in that particular area. Of course, as many 'dotters have correctly pointed out, you're better off staying out of court altogether and dealing with this through polite letters, but if you do get sued don't believe all the folks here on/. who say your legal position is untenable. Talk to someone whose job it is to know.
Slashdot Mirror
Yes. As the Court notes explicitly on the fourth page of the decision.
The opinion specifically states that the customer can return the software if he doesn't want to agree to the EULA (13866). This is a requirement for the EULA to be binding in this context. There's a fair amount of law on that, so if you ever find yourself contesting a EULA proof that you could not return the software prior to accepting it would be relevant.
Okay, I hesitate to weigh in here, because this isn't going to be a popular question, but did anyone read the opinion? This is, factually, a rotten case for first sale. CTA bought the software and agreed to the EULA which specifically required that they destroy Release 14 in order to get upgrade pricing on Release 15. They paid $495 per license for R 15 instead of the normal $3,750 they would have paid specifically BECAUSE they were required to destroy R 14. Instead they decided to say screw it and they sold their old R 14 copies on the secondary market with the activation codes handwritten on the package. Vernor bought the copies, knowing about the EULA, and then resold them and claimed protection from the first sale doctrine.
Now I'm as gung ho as the next guy about appropriate limitations on copyright (maybe not the next guy here on /., but the average next guy); and in particular I think first sale, like fair use, is an incredibly important protection that's been getting the shaft in the courts lately. But in this particular context -- the upgrade context where the company that poured its dollars into writing better and stronger code is trying to cut its customers a break -- it's going to be a pretty hard sell. Vernor screwed himself here, and unfortunately I suspect he took a lot of other people with him.
Yes, but note that "costs" are not the same as "fees". Court costs are quite minimal -- filing fees and such -- it's not the same as attorney's fees and the other expenses related to litigation.
Incidentally, to clarify the question above, "as a matter of law" means that the question could have been resolved by the judge on a motion to dismiss (without reference to the facts and assuming all facts to be true as alleged in the complaint), rather than on a motion for summary judgment (which relies on statements of "undisputed fact") or at trail by the finder of fact.IAAL; IANYL.
It was my Illudium Q-35 Explosive Space Modulator. I was wondering where it got to.
-Marvin
P.S. Where was the Kaboom? There was supposed to be an Earth-shattering Kaboom.
Just quickly, that's only the standard if the person is a public figure. If the person is a private individual the standard is lower and there is no need to prove intent to cause harm. The truth of the statement is, however, an absolute defense in all cases.
Sign me up! It's a combination of "American Idol" and "The People's Court" so we'll call it "The Idle American People's Court"!
.
Now to find a lawyer to negotiate my contract . .
Many have commented that this is a suit about lawyers more than about technoogy or even law. That's true in a lot of cases, but this one is especially interesting for law-geeks becaue it pits David Boies (former superstar litigation partner at a New York uberfirm) against that very New York uberfirm, Cravath Swaine & Moore.
SCO has hired Boies, whom slashdotters will remember as lawyer who so skillfully and successfully led the Justice Department's antitrust case against Microsoft and less successfully defended Napster (as well, perhaps, as for his less successful outings in Florida representing then vice-president Gore). IBM has chosen Cravath, its longtime counsel for "bet the company" litigation. Interestingly, Boies made his career as a young lawyer at Cravath by his (successful) work defending IBM against a massive Justice Department antitrust suit in the late 1970s (and 80s, the suit went on for something like 17 years before IBM finally prevailed). There is certainly no love lost between Cravath and Boies and the fight promises to be a fascinating one for lawyers and law-watchers. In any event, SCO's choice of cousel is an extremely canny one, though Boies' typical roster of slashdot-friendly clients has now, one assumes, been somewhat besmirched.
I have nothing to add to this discussion, so mod my post down or whatever, but I have to tell 11223 how much I dig his .sig.
Just a little reality check; there is plenty to argue about here. What almost everyone in this thread seems to have ignored (and what makes the case interesting, despite the tiny dollars apparently involved) is that this is a bankruptcy proceeding. The question is not whether you or I can resell our MS products under the EULA, it's whether a bankruptcy court chooses to ignore the alleged "license" and deem the software an asset of the estate.
It is important to remember that Bankruptcy Courts, unlike ordinary courts, are not required to attempt to enforce the will of the parties to a given contract. Rather, they are supposed to look through the contract and determine whether the terms, as written, create a fraudulent (or otherwise voidable) conveyance. Consider the following: I know I am going bankrupt, but I want to save my Ferrari. I agree to sell it to you for a dollar. You agree not to sell it to anyone else for a year and to sell it back to me in one year for 100 dollars. In return you get the use of the Ferrari. We sign the contract, title passes to you and I declare bankruptcy. A year later I have discharged my debts, I'm free and clear and I enforce my contractual right to buy back my Ferrari for $100. Right?
Wrong. Such a contract would be voided by a Bankruptcy Court and you'd have to give up the car. You'd probably even lose the dollar you paid. The car would become part of estate and would be sold. The money would be used to pay creditors. This is called fraudulent conveyance. It's pretty complicated (and dull) and I can't begin to give all necessary details here but what is interesting about this case is that a court will decide whether the material effect of a purchase of software if to transfer ownership or merely to create a license right, regardless of the language in the EULA.
IAAL, and my guess is the Court will punt on it and come up with other reasons to permit the transfer.
This is extremely carefully worded. It does NOT say that you will be able to send copies of copyrighted materials to friends over the internet. It says the machines will be able to "'talk' to each other". I haven't read the FAQ, but this leaves plenty of wiggle room.
"Talking" in this context might mean sharing programs, but it might also mean sharing programming data only or some other lame restriction. The fact is that, the way the law looks now, a Court could well find that there would have to be a "substantial non-infringing use" for the sharing feature to make it legal. In the context of the ReplayTV units (which I love -- I own one myself) that use would be hard to find. ReplayTV units record essentially only copyrighted material, so the sharing function (outside of a home LAN) would seem to have little non-infringing purpose.
Within a home LAN, an argument could be made that the purpose is "space shifting" -- making legally copied content available in other places in the home for the person who made the legal copy. This is an extension of the "time shifting" rationale used to justify the existence of VCRs in the Supreme Court's seminal Betamax case. "Space shifting" was also found to be a fair use (by a lower court) in the RIAA v. Diamond Multimedia (Rio) case, and is one reason that MP3 players are not actionable.
But the space shifting argument has not been extended in recent cases (either in New York or California, where most of this gets tried, see the various DeCSS cases) so I think the "sharing" feature, if it really does allow people to share copyrighted content with friends in distant locations, would be fertile ground for a lawsuit.
Note that, much as I love 'em, ReplayTV has backed off its promises in the past. It originally told buyers that their personal viewing information would NEVER be collected or sold. It is now clear that such information IS being collected for the my.replaytv.com service. That's fine -- good, even, my.replaytv.com is very cool -- it just happens to be a clear, unannouced change in policy.
Now if they put 802.11b in the thing, I'd pre-order right now.
Bockman, I'd be curious to find out on what you base the assertion that "CD Now cannot _legally_ sell credit card info . . . nor user preferences. "
CD Now has a privacy policy, the relevant portion of which states:
"We will not rent or sell your name, address, email address, credit card information or personal information to any third party without your permission. However, we must cooperate fully should a situation arise where we are required by law or legal process to provide information about a customer." (CD Now's Privacy Policy)
Lets assume for a moment that this constitutes a legally binding agreement between you and CDNow. (A question somewhat up in the air, particularly here in New York, given recent caselaw on click-through licenses). Let's further assume that CDNow violates this agreement if it sells your information. Your option is to sue CDNow for breach of contract and if a court finds the agreement to be legally binding and if the court finds they have breached, you will be allowed to prove your damages arising out of that breach and be compensated. If you live in the US that's probably about $50, the maximum liability you might sustain for fraudulent use of your credit card information. There has never been a successful lawsuit for missuse of "personal demographic information" or "musical taste" or anything like that. Remember here what many lawyers forget: in civil actions, "no harm no foul" is a good defense. Unless you can show with certainty that you have been harmed by CDNow's sale of this information, you have no legal recourse.
Then again, if CDNow goes into bankruptcy, the customer database would likely be considered an asset and sold. This would be ordered by the bankruptcy court, required by law, and therefore exempt from the privacy policy according to the second sentence of the language quoted above.
This is what happened to Toysmart, which sought to sell its customer lists in bankruptcy. It was sued by the FTC and various state attorneys general for the attempt (press release) but the case eventually settled when the Bankruptcy court found that there were no real buyers and Disney (the majority shareholer) agreed to pay $50,000 to Toysmart's creditors in exchange for having the info destroyed (NY AG press release).
The Toysmart case has led to an effort to get a law passed making it illegal to sell private information, but no such general law exists yet as far as I know. Thus it is not illegal (at least in most US states) to sell user preferences. Certain kinds of sensitive information (such as medical records) are protected by state law, and personally identifiable information that has been collected on a user under 13 years old cannot legally be sold (see: COPPA: The Children's Online Privacy Protection Act), but there is no general federal law barring sale of this kind of information.
Just an aside. IAAL, but this should not be construed as legal advice or relied upon for any purpose.
IAAL, but this isn't legal advice and should not be taken as such. I've done some research on this for a client and it is not as easy as "is it a game of skill or not". For example, it is illegal, in New York, to play penny a point bridge or bet with a friend on a round of golf (computer or otherwise). It is also illegal to play games that involve both chance and skill (such as poker) for money in New York and is it illegal knowingly to host such games.
I'm not sure how this company thinks it is going to escape liabilty for violating these laws (which are even tougher in Virginia, for example, than in New York) unless they are located offshore and thus consider themselves immune to prosecution. This raises a number of issues. Many states don't care where your servers are located and will deem the transaction to have taken place at the point of origination of the client as well as at the server. Also, of course, the clients are violating state laws (in some states) by betting on the games even if the "host" is not.
I've tried to find out more about this company and how they address these issues, but the site is a bit evasive. Should be interesting to see how this plays out.
To answer a few things at once here:
1. The poster who clarified that the AHRA applies to manufacturers, distributers, importers and the like and not to consumers is absolutely right, except that I believe there is a private right of action against individuals who deliberately circumvent the SCMS required by the Act.
2. To the poster who asked about the decision in RIAA v. Diamond, please note that the Court didn't address CD-R's, it limited its holding to the specific case of the RIO which can only download information from an attached computer, it cannot itself convert WAVs to MP3s or rip WAVs or MP3s from CDs. Because the primary pupose of a computer is not to record music, and because the Rio itself can only copy from the computer, the Court held that the RIO is not a digital recording device under the act. (This is an oversimplification, but it's close enough for government work.) In short, RIAA v. Diamond says nothing about the applicability of the AHRA to other kinds of digital devices, Napster clients, or anything else -- it should be interpreted as strictly limited to its facts. You can bet the RIAA sees it that way.
3. To the poster who wrote: "So, thus, the RIAA is basically wrong in their claim that digital recording to computers and the like is illegal?" No! The original poster said that RIAA was claiming that the Audio Home Recording Act of 1992 prevents certain kinds of copying. If they are claiming this, they are wrong. But, and I cannot stress this enough, the Digital Millennium Copyright Act (DMCA) and the plain old Federal Copyright Law (as of at least 1976) certainly do bar certain kinds of copying. The exceptions for fair use (established by statute) and "time shifting" (established by the Supreme Court in the Betamax case) should apply to digital recording in most contexts, so ripping your own CDs should be fine, but that does not mean you can copy other people's CDs with abandon.
WARNING -- OBSCURE AND BORING LEGAL POINT COMING
An intersting (?) aside here: The Ninth Circuit in RIAA v. Diamond ruled that the primary purpose of the Rio is "space shifting" -- that is, copying music that you own for listening to in other places or on the go. The Court held that such "space shifting" was analagous to "time shifting" which the Supreme Court had found, in Betamax was not a violation of the Copyright law. Thus, the Court held that copying to the Rio is a fair use.
This decision is probably a little bit wrong. The Court probably meant to say that copying to the Rio does not violate the copyright law, not that it is a fair use. The distinction is a subtle one that only a copyright practitioner would think of, but the copyright bar has made much of it. Essentially, if a certain use is a "fair use" then there is no restriction on that use, regardless of the source of the original material. For example, parody is the classic fair use. I can copy Mickey Mouse and make a parody of him all I want, regardless of whether or not I own any rights whatsoever in the original image. Thus, if "space shifting" really is a "fair use" it should be legal to copy any material -- regardless of whether I own the original or not. This is almost certainly not what the Court meant, but a lot copyright lawyers who are much smarter than me have argued that that may be the result of the decision as a technical matter. Of course, if that is the case, the Supremes will probably close that loophole eventually.
In this case, of course, even more disclaimers apply. Do not take anything in this posting as legal advice. It is, at best, theory and at worst it could be a dangerous misstatement of the law, depending on who you believe. But if you get sued by the RIAA give me a call.
Also, works of art carry with them so-called "moral rights" and "rights of attribution". The complexities of this area are, as Janus said, manifold, but suffice it to say that you can't necessarily alter a work that you "own" and you certainly can't photograph it and put it on the web. The copyright does not travel with the work unless the work is a work for hire.
And so on, and so on.... all disclaimers.
Having said that, let's start with the law. Section 1008 of the Audio Home Recording Act of 1992 says:
What that means, in English, is that individuals cannot be sued (or prosecuted) under the AHRA for making recordings, analog or digital, for non-commercial use.
The act is not designed to prevent people from making recordings (or MP3s or anything else) of their records. What the act does require is that the manufacturers of devices capable of making digital recordings (and also manufacturers of digital recording media) pay the record companies certain royalties for each such device (or unit of media) they sell and, more importantly, that they implement a system called the Serial Copy Management System (SCMS) on every such device. SCMS is designed to prevent people from making multiple generation digital copies from a single original - something that the record companies figure only pirates would want to do. SCMS has been around for 8 years now on every DAT and similar device sold to the public and its not going anywhere.
To answer the "how come I can freely tape my records or TV onto analog media" question, the answer is simple: Congress, with the help of record company lobbyists, has determined that lossless digital copying is not the same as lossy, hiss inducing, analog copying. It has therefore placed restrictions (the SCMS and the above-mentioned royalty) on digital copying. It's not a matter of teaching the "Courts" anything - it's a matter of telling Congress you disagree (if you do).
In fact, for a change, pretty much get it. When the RIAA sued Diamond, they claimed that the Rio MP3 player was a "digital recording device" subject to the terms of the AHRA and attempted to keep it off the market as it did not implement (back then) SCMS or any similar copy-protection scheme. The Court rejected that theory, finding that the Rio was not a digital recording device for the purposes of the Act. An in depth discussion of that case is beyond the scope of this already long-winded post, but if people want it I'll be happy to put it in a separate post.
Summary: The AHRA doesn't prevent you from recording anything. Go ahead. Go nuts. The DMCA is another matter, but that'll wait.
To suggest that law and economics views all regulation of the market as bad and therefore that Judge Posner will automatically favor Microsoft is a serious oversimplification. It's worth remembering that Larry Lessig, who was dismissed as special master in the M$ case because of his perceived bias against M$, was a University of Chicago law professor as well.
I got my law degre from U of C and studied under Judge Posner while there, so I felt the need to post something. I'm not sure how I feel about this turn of events and I expect to post more later after I've had some time to think, but it must be noted that, of all the things Judge Posner can be accused of being, he is not stupid. In fact, though many disagree with his views, I can say almost without fear of contradiction that he is one of the smartest people on the planet. This is a very interesting development on which more later.
I'm a lawyer who deals in these sorts of issues on an almost daily basis and I wouldn't dream of giving legal advice without hearing the details of your specific case so this is NOT legal advice and if you follow it you might get in all kinds of trouble for which I take no responsibility, but I will tell you one thing: you can safely disregard anyone who tells you that what you're doing is an actionable trademark infringement. What you are doing MAY be actionable as dilution, but if, as you say, you are using a disclaimer on every page it's not infringement. The touchstone of trademark infringement is the use of a mark in a way that may cause confusion as to the origin or endorsement of the goods or services offered. You didn't say what International Class "Purdue University" is registered in, but even assuming they have the mark registered for the services you offer, your use cannot possibly cause confusion if you have a suitable (that's a key word) disclaimer on every page.
Most domain name trademark cases, however, aren't about infringement; they are about a more malleable concept called dilution. Dilution occurs where an unauthorized use of the mark causes some damage to the mark's value as a signifier of the goods or services in question. Two important decisions that you should look for (if you decide you want to know what your legal position really is) are the recent Avery and Clue decisions, both of which address the limits of the dilution concept in the domain name area.
Again, this isn't legal advice and should not be relied upon for any purpose. If you end up fighting a legal battle make sure you find a good US lawyer with experience in this particular field. The domain name/trademark legal landscape is changing radically every day and even a good intellectual property lawyer can screw this up unless he or she is practicing in that particular area. Of course, as many 'dotters have correctly pointed out, you're better off staying out of court altogether and dealing with this through polite letters, but if you do get sued don't believe all the folks here on /. who say your legal position is untenable. Talk to someone whose job it is to know.