This so-called preview didn't inform me of anything I did not already know about Star Wars: Galaxies. I'm guessing it's intended for people who have lived under a rock for the last six months or so. There isn't even a hint as to a release date. Thanks, Ben Jackson, for wasting my time.
I'll be glad to buy these copy-protected CDs as long as the labels lower the prices. Right now I pay 16.99-18.99 for a brand new CD of which I can make mutiple copies for play on my computer, in my DVD player, in my car, and on mix CDs that I make for my own use. Personally, I think CDs are already too expensive. But if I buy a CD that I can only play on my stereo, not my computer and not my DVD player, and I can't copy a song from that CD to add to my own mix CD, then I don't feel I should have to pay as much for it. If the labels charge the same price, then I get less utility for the same buck. Hmmmmm, now that I put it that way, the recording industry is beginning to sound like a monopolist (or, actually, an oligopolist), providing less utility for each dollar spent than a free market would at the same point on the producer's marginal cost curve. Maybe we should encourage the labels to bring this crap on, so the DoJ can go after them and start regulating them. The RIAA would love that, wouldn't they?
Alright, own up. Which one of you tech geeks stole this guy's special little computer? Honestly, who would still this thing? The average car thief probably wouldn't even know what it was, much less what it was for. Besides, it's so specialized that it probably wouldn't be that great as a regular desktop PC.
Even better, the snapshot of the LCD in action shows that the guy is listening to Def Leppard! Maybe he deserved to get the thing stolen, if he was going to fill up such a neat little gadget with a load of crap.
I have not read every commment here but wanted to toss in a quick thought.
The main issue in DRM is whether users of copyright-protected material out to have a defined right to use. Currently, a user has the right to use a copyright-protected work up until the point of making a copy (I can buy a sheet of music and play it in my house, perform it live, blow my nose in it, use it as TP, and so on. Yet, I could not take that sheet of music and make one single copy of it without committing copyright infringement). Fair use, for example, is not a right, but an affirmative defense to a claim of copyright infringement (as in, "Yes, I am committing copyright infringement by copying this CD to mp3 format to play in my mp3 player, but it's okay because it is a fair use of the material (because I am the only person that will ever use the mp3)."). This system worked pretty well (not perfectly) before technology made mass infringement more visible and track-able and gave copyright holders the ability to implement protections designed to prevent certain types of infringement (protections that often also remove uses that are otherwise defensible as fair). Thus, the best way to limit DRM schemes designed by copyright holders is to grant users a specific set of rights of use and provide them with enforcement mechanisms (grant the average consumer the right to sue someone who makes a copyright-protected music CD which prevents the user from copying that CD for personal use). In this way, users are allowed to police violations of their rights on their own, just as copyright holders are now obligated to police their own rights.
I did not go to college to gain job-specific skills. That said, everything that I learned in college has benefited me in my work life. First, college taught me how to think, how to approach a problem and solve it. That one thing is a skill I can use in any job. Second, college gave me the opportunity to expose myself to wide range of fields and enabled me to find a career with which I am happy. I don't think that when one is seventeen years old one should expect or be expected to figure out the best career for one's life. Third, I learned my profession in professional school when I was ready. I knew what I wanted and was willing to work my butt off to be the best at it. If I had tried to do that earlier, I wouldn't have been able to, because I lacked specific goals.
Based on my own experience, then, I think that a well-rounded education is a major benefit. However, everyone is different. Some people are probably ready to go at 17, and don't need the time to figure things out like I did.
Everyone is posting about how to circumvent this copy protection to make mp3s. Forget mp3s. The music companies can never stop copyright infringement just by halting digital copying. If I can't make a digital copy, I'll just go back to what I did in college (yes, it was that long ago, in technology terms): copying cd to cassette tape. I have boxes full of tapes that I made of friends' cds. My friends have boxes full of tapes they made from me. Walkmen are ridculously cheap now. Car radios with cassette players are also cheap. And honestly, I cannot tell the difference between a high-quality cassette copy (using dolby-b, metal tape--features available on any but the absolute cheapest cassette deck even before mp3s took off) and an 128kbps mp3. Frankly, the only thing mp3 technology has done is increased the convenience of portable music, but I'd glady go back to my trusty tapes and walkman. The thing that puzzles me the most is how the music companies got up in arms about mp3s when making tape copies was always just as easy.
Oh yeah, "Killing an Arab" by the Cure--the song is about The Stranger by Albert Camus. Of all those songs, this one should have made the list for its title (but not for its content). Further reinforcing my belief that this is a hoax.
There is no way this can be for real. "What a wonderful world," by Louis Armstrong is on that list. What could possibly be offensive about that song? And 99 Red Balloons? Or Love Is a Battlefield? Or Walk Like an Egyptian? It seems like whoever made this list made it specifically to get people riled up--no band is sacred. Some of the songs make sense, in a twisted way, like Black Sabbath's War Pigs (but it's an antiwar song!). Banning many of these songs just makes no sense (the Beatles' Obla Di Obla Da?), this must be a hoax.
Well said. The one thing that strikes me about this piece though is that the author feels it is necessary to identify himself as Jewish in the first sentence. While I understand why he did it, the question I have to ask is if he wasn't Jewish would his statement be any less valid or well-said? My fear is that if we qualify our statements by saying, basically, "I'm Jewish, so I can criticize what this Jewish organization is doing without coming off as antisemitic." then we create an atmosphere where valid, non-antisemitic criticisms of Jewish organizations by non-Jews are automatically suspect as antisemitic (the point is everyone is responsible for creating this atmosphere, not just the organizations). People shouldn't feel that if they make valid, nondiscriminatory statements that they might be labeled as bigots. Qualifying your statement like this only contributes to this atmosphere.
I saw some posts in yesterday's topic that raised my eyebrows because they stated things like: "Jews think that we [non-jews?] can't criticize jews, because millions of them were killed." or "B'nai Brith is a strongarm organization spreading zionism." Statements like that are discriminatory. The point here isn't that B'Nai Brith Canada is a jewish organization, but that because B'Nai Brith is seeking to ban certain speech, the organization is placing itself at odds with a widely held and accepted notion of civil liberties. It's perfectly valid to challenge B'Nai Brith for taking a stance that is in opposition to civil liberties. The bottom line is the issue of whether B'Nai Brith is a jewish organization, or a critic of B'Nai Brith is jewish, is a red herring; what is important is the content of both sides' statements.
I've been using email and a web-enabled cell phone to keep in touch with my friends in NYC. So far they are all safe. I am thankful that I don't have to rely on the telephone, because I haven't been able to call anyone in NYC all day (all circuits are busy). I have been able to send and check email from my cell phone and that is how I made sure that friends of mine that might have been near the towers were safe.
Oh yeah, I almost forgot, the ISP is not obligated to provide anyone with due process, because the ISP is not the government. Nonetheless, the DMCA does provide a procedure to protect subscribers from this kind of action.
Now that I think about this a little more, I have one question: why did the MPAA contact the ISP of the person who uploaded the file? Under the DMCA only the server where the file is stored and accessible is potentially liable for copyright infringement. The DMCA should have contacted whoever maintained the server for the usenet group and told them to disable access to the file. The DMCA exempts ISPs from liability for allegedly infringing files that are merely transmitted through their network. The MPAA could not have taken any action against the ISP. Further, the ISP is not authorized by the DMCA to cut off this guy's internet access, simply because the MPAA says he transmitted a copyright protected file. (However, the ISP might have a provision in their service agreement that permits them to cut off the internet access of someone accused of copyright infringement.) Unless the file was stored on the ISP's network and accessible to others on the outside, the ISP didn't have to do anything to protect themselves from liability.
Seems that the real problem here is that the ISP had a knee-jerk reaction to an accusation of copyright infringement--cut off the subscriber's access. Even if the allegedly infringing material was located on a web page, for example, hosted by the ISP, the only action the DMCA would require the ISP to take would be to disable access to that web page, not disable the subcriber's access. It seems that even under the DMCA, both the MPAA and the ISP acted wrongly here.
Yes, there is a provision in the DMCA that prevents someone from knowingly and falsely claiming copyright infringement. See my post below for more detail. One thing to add: the knowinlgy part makes this tricky--this guy would have to prove that the MPAA knew that he did not upload a movie (or that the movie wasn't uploaded from his IP) and then deliberately lied about it. I doubt that he could prove that. The provision seems to be designed more to prevent someone from viciously targeting an innocent person than to prevent mistakes like this one.
(1) Copyright and computer systems in general. The basic rule in copyright law is that one may not copy an original work of authorship, unless one has permission of the owner of the rights to that work or one can claim fair use. Making a copy is infringement on the copyright. The federal courts have ruled that when a computer stores data in its memory, a copy is made. As we all know, a file in a computer is never physically transferred anywhere like a piece of physical paper. When you move a computer file all you are doing is deleting a copy at one location (your hard drive for example) and making a new copy at another location (a cd-r for example). The same thing works for downloading and uploading--you have a copy on your hard drive and you make a new copy at the upload location, or make a new copy of the file from the download location. Thus, if you have, for example, an mpeg file of an entire movie, and you transmit that mpeg to a usenet board, you make the following copies (I'm trying to keep this simple, so don't flame me if it isn't exactly right): you have one copy on your hard drive, you have another copy in the RAM of your computer where the data from the hard drive is copied as it is sent over your internet connection, your ISP has a copy in the RAM of whatever computer receives the data, the ISP then has another copy in the RAM of any other computer in its system that receives the data from the first computer, the ISP eventually has a copy on at least one hard drive somewhere in its network, the Usenet board has a copy in the RAM of at least one of its computers, and the Usenet board eventually has a copy on at least one hard drive in its network. Each of those copies is an infringing copy, and whoever owns the system on which each of those copies resides is liable for copyright infringement. It doesn't matter that one guy sent the copies to the ISP and Usenet, the ISP and Usenet made subsequent copies within their own systems.
(2) DMCA and ISPs However, the DMCA was written to avoid this pitfall for ISPs. Obviously, it's impossible for an ISP to know what every one of their users is putting into the ISP's network at every moment for every day. ISPs would be exposed to huge liabilities under the law as outlined above. The DMCA permits ISPs to avoid liability if they take immediate action to disable access to allegedly infringing material when properly notified by the holder of the copyright or the holder's agent. Basically, these provisions of the DMCA are a good thing because they keep our ISPs from strictly monitoring everything we do and censoring anything that might possibly bring on liability. Under the DMCA, an ISP only has to disable access if it has actual knowledge of infringement--actual knowledge can be gained a lot of ways, but the most prevalent is from a notice from the copyright holder. The act places the burden on copyright holders to protect their own copyrights, and that is as it should be.
(3) What subscribers can do when their ISP disables their access because of alleged copyright infringement. The DMCA also contains protections for subscribers, which this Salon article does not mention at all. Basically, after an ISP disables access, a subscriber can counter-notify their ISP that the material does not infringe on any copyright. When an ISP receives a counter-notification, it must tell the original notifier that the ISP will restore access to the material in ten days unless the original notifier gets a court order to prevent them from restoring access. Then, obviously, it is incumbent on the original notifier to take their case to court and prove before a judge that the material infringes their copyright. The subscriber is guaranteed an opportunity to present his or her case before a judge. The counter-notification has to satisfy specific requirements as laid out in the DMCA (basically swearing under penalty of perjury that the subscriber has a good faith belief that the material does not infringe on any copyright).
(4) What this post has to do with the Salon article. The author of the article is not entirely correct when she says that her boyfriend was accused and had no recourse. The DMCA protects the right of the subscriber to due process, i.e., to have an opportunity to be heard in his own defense before a judge. The problem was that this author and her boyfriend treated being accused of copyright infringement as a customer service problem. This kind of accusation is not a matter for a person to take up with the ISP; it's a legal problem, and they should have sought the advice of counsel. For example, if a store stops you and accuses you of shop-lifting, then the police come to arrest you, would you try to resolve the dispute with the store? No, you call a criminal defense attorney, because you've been accused of breaking the law, not store policy. If there is a moral to her story, it should be when you are accused of breaking the law, take legal action to defend yourself.
(5) One final note. The DMCA also provides that if anyone knowingly materially misrepresents that material or activity infringes on copyright, that person is liable to the accused person for damages, including attorney's fees and costs. Basically, MPAA cannot go around falsely accusing people of violating copyright, or they risk being sued. Perhaps the author's boyfriend could have pursued this line against the MPAA.
DISCLAIMER: This post is not intended to provide legal advice.
Just a quick note: when a company files bankruptcy under Chapter 11, it does not mean, necessarily, that the company is dead. The bankruptcy laws create a structure that both protects ailing companies from their creditors and permits creditors to get something back on the debts that company owes them. The end result of a Chapter 11 proceeding is that all creditors claims are settled. Often companies will continue to exist in some form after Chapter 11 proceedings are concluded. Also, many companies continue to operate throughout the Chapter 11 proceedings, which can take years. While it's not good for Loki that they had to file Chapter 11, it does not necessarily mean that Loki is totally done.
I'm not really sure how extradition works, but I suspect in order to be extradited, the country charging you with the crime must have or had jurisdiction over your person at some point. Extradition seems to be more for the purpose of catching criminals who have fled a country to avoid its jurisdiction rather than for catching criminals over whom the charging country never had jurisdiction in the first place.
One very interesting result of Bush's announcement is that we are beginning to see the same change in him as a President that we have seen in our last two (Clinton and the other Bush). GWB came into office on a very conservative platform and immediately began implementing conservative policies and reversing many Clinton policies. Public reaction to these actions was mixed, but I think generally unfavorable. GWB's foreign policy has received a huge amount of criticism both at home and abroad. But now we are seeing Bush being forced to shift more to the center. He won't ban federal funding for stem cell research outright. He won't unilaterally proceed on a lot of the foreign policy or military intiatives that he has lately been pursuing. I think as his administration moves forward, we are going to see more movement to the center. I believe that no president can expect to be successful in today's political climate without becoming a conciliator of vastly different viewpoints. The notion that either conservatives or liberals run this country at any one time lives on only as a fiction convenient for reelection and media purposes.
I am not going to get into a drawn out debate with you on this topic. I want to respond to a couple of your statements specifically. But first, let me point out that my post is not based on my opinion or my philosophy, it was based on my educated analysis of the relevant legal framework. I didn't make that stuff up. I looked it all up and checked it before I wrote it down. I learned quite a bit of it in law school.
From a philosophical viewpoint, distinguishing ideas and their expressions might be difficult. From a legal viewpoint, and thus the viewpoint of any court, the two are clearly distinct. For example, let's say that Einstein announced his theory of relativity in an article published in a major scientific journal. Einstein owns the copyright of that article--he can prevent everyone else from reprinting the article or any portion of it, without his permission (there is a limitation on his right created by a fair use, but we don't need to get into that here). However, Einstein could never prevent anyone from writing about the theory of relativity, from analyzing it, testing it, thinking about it. Thus, the distinction between an idea and its expression is clear.
Let me be more specific about Napster: if you and I are using Napster, and I have a copyright-protected song on my hard drive, and you download that song, but do not actually own a non-infringing copy of that song, you (and arguably me too) have committed copyright infringement. If you download a song that is not copyright-protected, you already own, or is distributed under a license that permits copying, then you are not infringing copyright. The court's decision ordered Napster to block copyrighted songs. Napster's solution might block a lot of other stuff besides copyrighted material, but that is Napster's fault, not the court's. There might be something to your argument that Napster is a form of assembly, but I doubt that any form of assembly, if it facilitated infringement of copyright, would be protected by the First Amendment. The rights to freedom of expression and assembly are not absolute. For example, it is against the law to yell "Fire!" in a crowded theater, even though yelling anything is obviously speech and otherwise covered under the First Amendment. However, because yelling fire in a crowded theater is extremely dangerous to the public, it is not protected speech. It is also against the law to riot in a mob. Obviously, a mob is an assembly. But because mobs are dangerous to the public welfare, the need to protect the mob's collective right of assembly is outweighed.
As far as you're concerned you are buying a CD and the right to obtain maximum utility from that CD? I am sorry to disappoint you, but there is not a court in the U.S. that would find the license under which you buy a CD to be invalid. Just because you think it is invalid, doesn't make it invalid. If you don't agree to the license, don't buy. As for software licenses, you are close to a major legal debate: are those licenses valid if you must agree to them after opening the product? The problem with your position is that most courts throughout the country have rejected it. In most cases, shrinkwrap licenses, as they are called, have been upheld when challenged. Again, just because you don't like it, doesn't make it not true.
When you modify a CD physically (scratching it), you do the same thing as tearing pages from a book. As I said, you can do whatever you want to the physical object, but you are limited as to what you can do to the content. But you cannot, unless licensed by the copyright owner, decide that you like the book, but only if a few changes were made, make those changes, and then publish the revised book. If you did that, but then kept the book for yourself instead of publishing it, then that arguably would be a fair use. If you tweak or write a patch for a software program for your own private use, that again is arguably fair use. But if you make that patch or tweak available for download on the internet, and especially if you charge people for it, you are probably walking right out of the fair use area (although I don't think that specific issue has been decided by any court yet).
The bottom line of my posts is this: copyright infringement is not free speech. Now that statement begs the question: the issue is that works that are protected by copyright by definition cannot become speech that is protected by the First Amendment. Otherwise, they could not be protected by copyright.
The purpose of copyright laws is to provide authors property rights in their original works. Ideas and facts are not protected by copyright. Thus, the copyright law protects freedom of speech by allowing free dissemination of ideas and facts. For example, the book Ishmael is protected by copyright. The author, Daniel Quinn, has property rights in his book through which he can prevent you and I from publishing it, reprinting it, or excerpting it without his permission. However, he could never prevent me from writing an essay about the rise and fall of civilizations (a central concept in the book). He couldn't prevent me from making a speech about this idea, or discussing the idea in an online chat room. My ability to discuss that idea freely is protected by the freedom speech guaranteed in the Constitution, and copyright respects that right. Exchanging mp3s via Napster (assuming that both parties don't already own a non-infringing copy of the work) is not free speech. The exchange in that situation is of a copyright-protected work. The technology used by Napster has not been outlawed. Napster has been prevented from continuing to infringe the copyrights of thousands of artists. Your right of free speech has not been abridged, because you can still exchange all the facts and ideas via peer-to-peer sharing that you like.
The only rights to privacy that actually appear in the Constitution are not even directly related to the concept of privacy. The Fourth Amendment prohibits searches and seizures absent a warrant showing probable cause and specifying the persons and places to be searched (there's also the prohibition on quartering troops in private homes, but no one ever talks about that anymore). The Fifth Amendment provides that one need not testify to information that might be self-incriminating. The Supreme Court has found that these amendments create a penumbra of privacy rights. Included in that penumbra is consensual, unmarried sex (but not with someone of the same sex as you, see Bowers v. Hardwick), use of contraceptives, interracial marriage, and abortion. Privacy is not an essential right--we don't really have any privacy rights at all.
I'm sure that you are aware that when you buy a software program, you are actually buying the license to use that program. If that license prevents you from reengineering that program, then if you do, the licensee can sue you for breach of contract. You do own your CDs and DVDs in the same sense as you own a book. You can write on them, scratch them, sell them (but not copies of them) to other people, take baths with them. However, you might not have the right to decode your DVDs because the process of decoding those DVDs is (was) a trade secret, and protected by a different part of our property rights system. Owning a CD or DVD or book means simply that: you own the physical object. You don't own its content. You can do anything you want with the physical object, but you are limited as to what you can do with the content, because someone else owns the rights to that content.
Final, you're right to swing your fist does not end at my face. If you take a swing at me, even if you don't hit me and even if you only intend to scare me, I can sue you for assault and you can be prosecuted for criminal assault (note that assault, in legal terms, refers to threatened or creating an apprhension of harmful physical contact, but battery means actual harmful phsyical contact). I am afraid to tell you that you can't go around taking swings at people and deliberately missing them with impunity.
Well, my analogy on DeCSS might be weak. I admit that I don't know as much about the technology as I should.
As for what Dmitry did being legal in Russia: it doesn't matter. He violated a U.S. law in the United States by making his program available in the United States, and then he showed up in the U.S. and got arrested. If a cocaine dealer in Colombia is involved in a conspiracy to distribute cocaine in the United States and then one day shows his face here in the U.S., he can be arrested and tried here. If Dmitry had somehow prevented his program from being sold to anyone in the United States, or limited its distribution to Russia, the U.S. would not have jurisdiction over him. But his program was available worldwide. The real problem in his case is whether he was the one responsible for making the program available in the U.S. If it was his employer and he had nothing to do with that decision, he might be able to avoid U.S. jurisdiction. Nonetheless, jurisdiction is a question for the court, not the officers who arrested him. He was lawfully arrested, but maybe he cannot be lawfully tried.
I didn't generalize. I said (in brief): "if you do not own a copy of the song, downloading a copy is copyright infringement." That is exactly what you said: if you own the song already, even on another format, you can download it. No dispute here.
Yes, sort of. Section 107 of the Copyright Act (which, if you understand legal citations, can be found at 17 U.S.C. 170--that is, Section 107 of Title 17 of the United States Code), provides as follows:
"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."
Those four factors are how a court determines if an otherwise infringing use (e.g., quoting a book in a book review of that book) is actually a fair use. Fair use is not really a right of the user, but a limitation on the right of the copyright holder.
However, the Supreme Court, in the 1985 case Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, stated that these four factors were not exclusive of all the things that should be considered when determining if a use is fair. The factors are a guide. In reality, any court dealing with a fair use defense is going to start with those four factors and only deviate from that analysis in exceptional circumstances.
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This post is not intended to provide legal advice.
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This so-called preview didn't inform me of anything I did not already know about Star Wars: Galaxies. I'm guessing it's intended for people who have lived under a rock for the last six months or so. There isn't even a hint as to a release date. Thanks, Ben Jackson, for wasting my time.
I'll be glad to buy these copy-protected CDs as long as the labels lower the prices. Right now I pay 16.99-18.99 for a brand new CD of which I can make mutiple copies for play on my computer, in my DVD player, in my car, and on mix CDs that I make for my own use. Personally, I think CDs are already too expensive. But if I buy a CD that I can only play on my stereo, not my computer and not my DVD player, and I can't copy a song from that CD to add to my own mix CD, then I don't feel I should have to pay as much for it. If the labels charge the same price, then I get less utility for the same buck. Hmmmmm, now that I put it that way, the recording industry is beginning to sound like a monopolist (or, actually, an oligopolist), providing less utility for each dollar spent than a free market would at the same point on the producer's marginal cost curve. Maybe we should encourage the labels to bring this crap on, so the DoJ can go after them and start regulating them. The RIAA would love that, wouldn't they?
Alright, own up. Which one of you tech geeks stole this guy's special little computer? Honestly, who would still this thing? The average car thief probably wouldn't even know what it was, much less what it was for. Besides, it's so specialized that it probably wouldn't be that great as a regular desktop PC.
Even better, the snapshot of the LCD in action shows that the guy is listening to Def Leppard! Maybe he deserved to get the thing stolen, if he was going to fill up such a neat little gadget with a load of crap.
I have not read every commment here but wanted to toss in a quick thought.
The main issue in DRM is whether users of copyright-protected material out to have a defined right to use. Currently, a user has the right to use a copyright-protected work up until the point of making a copy (I can buy a sheet of music and play it in my house, perform it live, blow my nose in it, use it as TP, and so on. Yet, I could not take that sheet of music and make one single copy of it without committing copyright infringement). Fair use, for example, is not a right, but an affirmative defense to a claim of copyright infringement (as in, "Yes, I am committing copyright infringement by copying this CD to mp3 format to play in my mp3 player, but it's okay because it is a fair use of the material (because I am the only person that will ever use the mp3)."). This system worked pretty well (not perfectly) before technology made mass infringement more visible and track-able and gave copyright holders the ability to implement protections designed to prevent certain types of infringement (protections that often also remove uses that are otherwise defensible as fair). Thus, the best way to limit DRM schemes designed by copyright holders is to grant users a specific set of rights of use and provide them with enforcement mechanisms (grant the average consumer the right to sue someone who makes a copyright-protected music CD which prevents the user from copying that CD for personal use). In this way, users are allowed to police violations of their rights on their own, just as copyright holders are now obligated to police their own rights.
I did not go to college to gain job-specific skills. That said, everything that I learned in college has benefited me in my work life. First, college taught me how to think, how to approach a problem and solve it. That one thing is a skill I can use in any job. Second, college gave me the opportunity to expose myself to wide range of fields and enabled me to find a career with which I am happy. I don't think that when one is seventeen years old one should expect or be expected to figure out the best career for one's life. Third, I learned my profession in professional school when I was ready. I knew what I wanted and was willing to work my butt off to be the best at it. If I had tried to do that earlier, I wouldn't have been able to, because I lacked specific goals.
Based on my own experience, then, I think that a well-rounded education is a major benefit. However, everyone is different. Some people are probably ready to go at 17, and don't need the time to figure things out like I did.
Everyone is posting about how to circumvent this copy protection to make mp3s. Forget mp3s. The music companies can never stop copyright infringement just by halting digital copying. If I can't make a digital copy, I'll just go back to what I did in college (yes, it was that long ago, in technology terms): copying cd to cassette tape. I have boxes full of tapes that I made of friends' cds. My friends have boxes full of tapes they made from me. Walkmen are ridculously cheap now. Car radios with cassette players are also cheap. And honestly, I cannot tell the difference between a high-quality cassette copy (using dolby-b, metal tape--features available on any but the absolute cheapest cassette deck even before mp3s took off) and an 128kbps mp3. Frankly, the only thing mp3 technology has done is increased the convenience of portable music, but I'd glady go back to my trusty tapes and walkman. The thing that puzzles me the most is how the music companies got up in arms about mp3s when making tape copies was always just as easy.
Oh yeah, "Killing an Arab" by the Cure--the song is about The Stranger by Albert Camus. Of all those songs, this one should have made the list for its title (but not for its content). Further reinforcing my belief that this is a hoax.
There is no way this can be for real. "What a wonderful world," by Louis Armstrong is on that list. What could possibly be offensive about that song? And 99 Red Balloons? Or Love Is a Battlefield? Or Walk Like an Egyptian? It seems like whoever made this list made it specifically to get people riled up--no band is sacred. Some of the songs make sense, in a twisted way, like Black Sabbath's War Pigs (but it's an antiwar song!). Banning many of these songs just makes no sense (the Beatles' Obla Di Obla Da?), this must be a hoax.
Well said. The one thing that strikes me about this piece though is that the author feels it is necessary to identify himself as Jewish in the first sentence. While I understand why he did it, the question I have to ask is if he wasn't Jewish would his statement be any less valid or well-said? My fear is that if we qualify our statements by saying, basically, "I'm Jewish, so I can criticize what this Jewish organization is doing without coming off as antisemitic." then we create an atmosphere where valid, non-antisemitic criticisms of Jewish organizations by non-Jews are automatically suspect as antisemitic (the point is everyone is responsible for creating this atmosphere, not just the organizations). People shouldn't feel that if they make valid, nondiscriminatory statements that they might be labeled as bigots. Qualifying your statement like this only contributes to this atmosphere.
I saw some posts in yesterday's topic that raised my eyebrows because they stated things like: "Jews think that we [non-jews?] can't criticize jews, because millions of them were killed." or "B'nai Brith is a strongarm organization spreading zionism." Statements like that are discriminatory. The point here isn't that B'Nai Brith Canada is a jewish organization, but that because B'Nai Brith is seeking to ban certain speech, the organization is placing itself at odds with a widely held and accepted notion of civil liberties. It's perfectly valid to challenge B'Nai Brith for taking a stance that is in opposition to civil liberties. The bottom line is the issue of whether B'Nai Brith is a jewish organization, or a critic of B'Nai Brith is jewish, is a red herring; what is important is the content of both sides' statements.
Yes, please tell this to the kids whose parents aren't coming home because they went to work this morning. Death is not about numbers. Have a heart.
I've been using email and a web-enabled cell phone to keep in touch with my friends in NYC. So far they are all safe. I am thankful that I don't have to rely on the telephone, because I haven't been able to call anyone in NYC all day (all circuits are busy). I have been able to send and check email from my cell phone and that is how I made sure that friends of mine that might have been near the towers were safe.
Yes, I think you've got it. Sending drunken e-mails is even better than drunken voice mails, because you can't slur the words.
Oh yeah, I almost forgot, the ISP is not obligated to provide anyone with due process, because the ISP is not the government. Nonetheless, the DMCA does provide a procedure to protect subscribers from this kind of action.
You have a good point. But there are are guarantees of due process here. See my post below for more detail.
Now that I think about this a little more, I have one question: why did the MPAA contact the ISP of the person who uploaded the file? Under the DMCA only the server where the file is stored and accessible is potentially liable for copyright infringement. The DMCA should have contacted whoever maintained the server for the usenet group and told them to disable access to the file. The DMCA exempts ISPs from liability for allegedly infringing files that are merely transmitted through their network. The MPAA could not have taken any action against the ISP. Further, the ISP is not authorized by the DMCA to cut off this guy's internet access, simply because the MPAA says he transmitted a copyright protected file. (However, the ISP might have a provision in their service agreement that permits them to cut off the internet access of someone accused of copyright infringement.) Unless the file was stored on the ISP's network and accessible to others on the outside, the ISP didn't have to do anything to protect themselves from liability.
Seems that the real problem here is that the ISP had a knee-jerk reaction to an accusation of copyright infringement--cut off the subscriber's access. Even if the allegedly infringing material was located on a web page, for example, hosted by the ISP, the only action the DMCA would require the ISP to take would be to disable access to that web page, not disable the subcriber's access. It seems that even under the DMCA, both the MPAA and the ISP acted wrongly here.
Yes, there is a provision in the DMCA that prevents someone from knowingly and falsely claiming copyright infringement. See my post below for more detail. One thing to add: the knowinlgy part makes this tricky--this guy would have to prove that the MPAA knew that he did not upload a movie (or that the movie wasn't uploaded from his IP) and then deliberately lied about it. I doubt that he could prove that. The provision seems to be designed more to prevent someone from viciously targeting an innocent person than to prevent mistakes like this one.
(1) Copyright and computer systems in general.
The basic rule in copyright law is that one may not copy an original work of authorship, unless one has permission of the owner of the rights to that work or one can claim fair use. Making a copy is infringement on the copyright. The federal courts have ruled that when a computer stores data in its memory, a copy is made. As we all know, a file in a computer is never physically transferred anywhere like a piece of physical paper. When you move a computer file all you are doing is deleting a copy at one location (your hard drive for example) and making a new copy at another location (a cd-r for example). The same thing works for downloading and uploading--you have a copy on your hard drive and you make a new copy at the upload location, or make a new copy of the file from the download location. Thus, if you have, for example, an mpeg file of an entire movie, and you transmit that mpeg to a usenet board, you make the following copies (I'm trying to keep this simple, so don't flame me if it isn't exactly right): you have one copy on your hard drive, you have another copy in the RAM of your computer where the data from the hard drive is copied as it is sent over your internet connection, your ISP has a copy in the RAM of whatever computer receives the data, the ISP then has another copy in the RAM of any other computer in its system that receives the data from the first computer, the ISP eventually has a copy on at least one hard drive somewhere in its network, the Usenet board has a copy in the RAM of at least one of its computers, and the Usenet board eventually has a copy on at least one hard drive in its network. Each of those copies is an infringing copy, and whoever owns the system on which each of those copies resides is liable for copyright infringement. It doesn't matter that one guy sent the copies to the ISP and Usenet, the ISP and Usenet made subsequent copies within their own systems.
(2) DMCA and ISPs
However, the DMCA was written to avoid this pitfall for ISPs. Obviously, it's impossible for an ISP to know what every one of their users is putting into the ISP's network at every moment for every day. ISPs would be exposed to huge liabilities under the law as outlined above. The DMCA permits ISPs to avoid liability if they take immediate action to disable access to allegedly infringing material when properly notified by the holder of the copyright or the holder's agent. Basically, these provisions of the DMCA are a good thing because they keep our ISPs from strictly monitoring everything we do and censoring anything that might possibly bring on liability. Under the DMCA, an ISP only has to disable access if it has actual knowledge of infringement--actual knowledge can be gained a lot of ways, but the most prevalent is from a notice from the copyright holder. The act places the burden on copyright holders to protect their own copyrights, and that is as it should be.
(3) What subscribers can do when their ISP disables their access because of alleged copyright infringement.
The DMCA also contains protections for subscribers, which this Salon article does not mention at all. Basically, after an ISP disables access, a subscriber can counter-notify their ISP that the material does not infringe on any copyright. When an ISP receives a counter-notification, it must tell the original notifier that the ISP will restore access to the material in ten days unless the original notifier gets a court order to prevent them from restoring access. Then, obviously, it is incumbent on the original notifier to take their case to court and prove before a judge that the material infringes their copyright. The subscriber is guaranteed an opportunity to present his or her case before a judge. The counter-notification has to satisfy specific requirements as laid out in the DMCA (basically swearing under penalty of perjury that the subscriber has a good faith belief that the material does not infringe on any copyright).
(4) What this post has to do with the Salon article.
The author of the article is not entirely correct when she says that her boyfriend was accused and had no recourse. The DMCA protects the right of the subscriber to due process, i.e., to have an opportunity to be heard in his own defense before a judge. The problem was that this author and her boyfriend treated being accused of copyright infringement as a customer service problem. This kind of accusation is not a matter for a person to take up with the ISP; it's a legal problem, and they should have sought the advice of counsel. For example, if a store stops you and accuses you of shop-lifting, then the police come to arrest you, would you try to resolve the dispute with the store? No, you call a criminal defense attorney, because you've been accused of breaking the law, not store policy. If there is a moral to her story, it should be when you are accused of breaking the law, take legal action to defend yourself.
(5) One final note.
The DMCA also provides that if anyone knowingly materially misrepresents that material or activity infringes on copyright, that person is liable to the accused person for damages, including attorney's fees and costs. Basically, MPAA cannot go around falsely accusing people of violating copyright, or they risk being sued. Perhaps the author's boyfriend could have pursued this line against the MPAA.
DISCLAIMER: This post is not intended to provide legal advice.
Just a quick note: when a company files bankruptcy under Chapter 11, it does not mean, necessarily, that the company is dead. The bankruptcy laws create a structure that both protects ailing companies from their creditors and permits creditors to get something back on the debts that company owes them. The end result of a Chapter 11 proceeding is that all creditors claims are settled. Often companies will continue to exist in some form after Chapter 11 proceedings are concluded. Also, many companies continue to operate throughout the Chapter 11 proceedings, which can take years. While it's not good for Loki that they had to file Chapter 11, it does not necessarily mean that Loki is totally done.
I'm not really sure how extradition works, but I suspect in order to be extradited, the country charging you with the crime must have or had jurisdiction over your person at some point. Extradition seems to be more for the purpose of catching criminals who have fled a country to avoid its jurisdiction rather than for catching criminals over whom the charging country never had jurisdiction in the first place.
One very interesting result of Bush's announcement is that we are beginning to see the same change in him as a President that we have seen in our last two (Clinton and the other Bush). GWB came into office on a very conservative platform and immediately began implementing conservative policies and reversing many Clinton policies. Public reaction to these actions was mixed, but I think generally unfavorable. GWB's foreign policy has received a huge amount of criticism both at home and abroad. But now we are seeing Bush being forced to shift more to the center. He won't ban federal funding for stem cell research outright. He won't unilaterally proceed on a lot of the foreign policy or military intiatives that he has lately been pursuing. I think as his administration moves forward, we are going to see more movement to the center. I believe that no president can expect to be successful in today's political climate without becoming a conciliator of vastly different viewpoints. The notion that either conservatives or liberals run this country at any one time lives on only as a fiction convenient for reelection and media purposes.
I am not going to get into a drawn out debate with you on this topic. I want to respond to a couple of your statements specifically. But first, let me point out that my post is not based on my opinion or my philosophy, it was based on my educated analysis of the relevant legal framework. I didn't make that stuff up. I looked it all up and checked it before I wrote it down. I learned quite a bit of it in law school.
From a philosophical viewpoint, distinguishing ideas and their expressions might be difficult. From a legal viewpoint, and thus the viewpoint of any court, the two are clearly distinct. For example, let's say that Einstein announced his theory of relativity in an article published in a major scientific journal. Einstein owns the copyright of that article--he can prevent everyone else from reprinting the article or any portion of it, without his permission (there is a limitation on his right created by a fair use, but we don't need to get into that here). However, Einstein could never prevent anyone from writing about the theory of relativity, from analyzing it, testing it, thinking about it. Thus, the distinction between an idea and its expression is clear.
Let me be more specific about Napster: if you and I are using Napster, and I have a copyright-protected song on my hard drive, and you download that song, but do not actually own a non-infringing copy of that song, you (and arguably me too) have committed copyright infringement. If you download a song that is not copyright-protected, you already own, or is distributed under a license that permits copying, then you are not infringing copyright. The court's decision ordered Napster to block copyrighted songs. Napster's solution might block a lot of other stuff besides copyrighted material, but that is Napster's fault, not the court's. There might be something to your argument that Napster is a form of assembly, but I doubt that any form of assembly, if it facilitated infringement of copyright, would be protected by the First Amendment. The rights to freedom of expression and assembly are not absolute. For example, it is against the law to yell "Fire!" in a crowded theater, even though yelling anything is obviously speech and otherwise covered under the First Amendment. However, because yelling fire in a crowded theater is extremely dangerous to the public, it is not protected speech. It is also against the law to riot in a mob. Obviously, a mob is an assembly. But because mobs are dangerous to the public welfare, the need to protect the mob's collective right of assembly is outweighed.
As far as you're concerned you are buying a CD and the right to obtain maximum utility from that CD? I am sorry to disappoint you, but there is not a court in the U.S. that would find the license under which you buy a CD to be invalid. Just because you think it is invalid, doesn't make it invalid. If you don't agree to the license, don't buy. As for software licenses, you are close to a major legal debate: are those licenses valid if you must agree to them after opening the product? The problem with your position is that most courts throughout the country have rejected it. In most cases, shrinkwrap licenses, as they are called, have been upheld when challenged. Again, just because you don't like it, doesn't make it not true.
When you modify a CD physically (scratching it), you do the same thing as tearing pages from a book. As I said, you can do whatever you want to the physical object, but you are limited as to what you can do to the content. But you cannot, unless licensed by the copyright owner, decide that you like the book, but only if a few changes were made, make those changes, and then publish the revised book. If you did that, but then kept the book for yourself instead of publishing it, then that arguably would be a fair use. If you tweak or write a patch for a software program for your own private use, that again is arguably fair use. But if you make that patch or tweak available for download on the internet, and especially if you charge people for it, you are probably walking right out of the fair use area (although I don't think that specific issue has been decided by any court yet).
The bottom line of my posts is this: copyright infringement is not free speech. Now that statement begs the question: the issue is that works that are protected by copyright by definition cannot become speech that is protected by the First Amendment. Otherwise, they could not be protected by copyright.
The purpose of copyright laws is to provide authors property rights in their original works. Ideas and facts are not protected by copyright. Thus, the copyright law protects freedom of speech by allowing free dissemination of ideas and facts. For example, the book Ishmael is protected by copyright. The author, Daniel Quinn, has property rights in his book through which he can prevent you and I from publishing it, reprinting it, or excerpting it without his permission. However, he could never prevent me from writing an essay about the rise and fall of civilizations (a central concept in the book). He couldn't prevent me from making a speech about this idea, or discussing the idea in an online chat room. My ability to discuss that idea freely is protected by the freedom speech guaranteed in the Constitution, and copyright respects that right. Exchanging mp3s via Napster (assuming that both parties don't already own a non-infringing copy of the work) is not free speech. The exchange in that situation is of a copyright-protected work. The technology used by Napster has not been outlawed. Napster has been prevented from continuing to infringe the copyrights of thousands of artists. Your right of free speech has not been abridged, because you can still exchange all the facts and ideas via peer-to-peer sharing that you like.
The only rights to privacy that actually appear in the Constitution are not even directly related to the concept of privacy. The Fourth Amendment prohibits searches and seizures absent a warrant showing probable cause and specifying the persons and places to be searched (there's also the prohibition on quartering troops in private homes, but no one ever talks about that anymore). The Fifth Amendment provides that one need not testify to information that might be self-incriminating. The Supreme Court has found that these amendments create a penumbra of privacy rights. Included in that penumbra is consensual, unmarried sex (but not with someone of the same sex as you, see Bowers v. Hardwick), use of contraceptives, interracial marriage, and abortion. Privacy is not an essential right--we don't really have any privacy rights at all.
I'm sure that you are aware that when you buy a software program, you are actually buying the license to use that program. If that license prevents you from reengineering that program, then if you do, the licensee can sue you for breach of contract. You do own your CDs and DVDs in the same sense as you own a book. You can write on them, scratch them, sell them (but not copies of them) to other people, take baths with them. However, you might not have the right to decode your DVDs because the process of decoding those DVDs is (was) a trade secret, and protected by a different part of our property rights system. Owning a CD or DVD or book means simply that: you own the physical object. You don't own its content. You can do anything you want with the physical object, but you are limited as to what you can do with the content, because someone else owns the rights to that content.
Final, you're right to swing your fist does not end at my face. If you take a swing at me, even if you don't hit me and even if you only intend to scare me, I can sue you for assault and you can be prosecuted for criminal assault (note that assault, in legal terms, refers to threatened or creating an apprhension of harmful physical contact, but battery means actual harmful phsyical contact). I am afraid to tell you that you can't go around taking swings at people and deliberately missing them with impunity.
Well, my analogy on DeCSS might be weak. I admit that I don't know as much about the technology as I should.
As for what Dmitry did being legal in Russia: it doesn't matter. He violated a U.S. law in the United States by making his program available in the United States, and then he showed up in the U.S. and got arrested. If a cocaine dealer in Colombia is involved in a conspiracy to distribute cocaine in the United States and then one day shows his face here in the U.S., he can be arrested and tried here. If Dmitry had somehow prevented his program from being sold to anyone in the United States, or limited its distribution to Russia, the U.S. would not have jurisdiction over him. But his program was available worldwide. The real problem in his case is whether he was the one responsible for making the program available in the U.S. If it was his employer and he had nothing to do with that decision, he might be able to avoid U.S. jurisdiction. Nonetheless, jurisdiction is a question for the court, not the officers who arrested him. He was lawfully arrested, but maybe he cannot be lawfully tried.
I didn't generalize. I said (in brief): "if you do not own a copy of the song, downloading a copy is copyright infringement." That is exactly what you said: if you own the song already, even on another format, you can download it. No dispute here.
Yes, sort of. Section 107 of the Copyright Act (which, if you understand legal citations, can be found at 17 U.S.C. 170--that is, Section 107 of Title 17 of the United States Code), provides as follows:
"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."
Those four factors are how a court determines if an otherwise infringing use (e.g., quoting a book in a book review of that book) is actually a fair use. Fair use is not really a right of the user, but a limitation on the right of the copyright holder.
However, the Supreme Court, in the 1985 case Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, stated that these four factors were not exclusive of all the things that should be considered when determining if a use is fair. The factors are a guide. In reality, any court dealing with a fair use defense is going to start with those four factors and only deviate from that analysis in exceptional circumstances.
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This post is not intended to provide legal advice.