Sounds like the only solution is to have ZERO MS software installed.
Or to actually pay for your software, and then agree to the audit. Presumably, the audit will be at their expense. Otherwise, yeah, let them raid and sue for damages I guess. Be sure to send them a letter before they raid saying that you are in complete compliance but object to the audit unless they pay for it. I bet you could win the case.
Umm. No. Anyone who has taken Economics 101 would know that supply is the cost of the hunks of metal plus the costs of the people hired to put them together. That's unskilled labor, and the supply curve is extremely elastic.
On one hand the "law" allows (in the US) software to patented, so it must be a "machine or device".
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. -
U.S. Code 35:101
Software describes a process. The software itself is not patentable, but the process is. While the computer running the software is a "machine or device", MP3 software is only one of many features, therefore it does not pass the "primary purpose" test.
Read the whole of the AHRA, and I think you'll agree that this is a good thing. We don't want SCMS forced into our hard drives and software, just because they happen to be capable of recording music. I'd also suggest you read the DMCA which, just like the AHRA before it, opens up new legal use and statutory licences as well as closing up previous rights.
The BSA may try to confiscate your copies (and a bone-headed judge may permit this), but until they prove that you have no license, you will not owe them any money.
How in the world can you prove that someone doesn't have a license? If you distribute your product directly, I guess you could show your records, and show that you have no record of giving a license to that company, but if you have resellers, it's simply impossible to show that someone doesn't have a license.
I didn't say that the customer had to prove they had a license, or that they had to produce an original document, but surely they have to show some evidence of having a license, perhaps a sales receipt, or a box, or perhaps even testimony.
I agree that if you have a license to use a copyrighted work that is not dependent on paperwork, but a license without any documentation isn't worth the paper it's printed on.
I read this as simply stating that if you recieve a copy, you are not allowed to munge the SCMS (or other) data, however, if it does not already exist, you are under no obligation to add it, even if you are the originator of the recording. So far, I haven't found any reason why an individual ripping a CD, and distributing digital copies of the songs from that CD would be guilty of any crime under the AHRA.
If you use AHRA media CDs. It was ruled that computer CDs are not AHRA media, as they have a primary purpose of non-audio data storage. But, there are Audio CD-Rs, which cost slightly more (due to the royalty), and are legal for certain types of personal home recording (such as copying a friend's tape/CD).
IMO, Napster never had any legs to stand on, although Gnutella client authors (as long as they are non-commercial) should have no risk under AHRA, although there may be other laws which apply. As best I can tell, if you're a non-commercial user, you are free to give anyone you please copies of your MP3's.
For the reasons you mention (as well as the fact that Napster is not a "machine or device", and probably other reasons, Napster does not apply under AHRA. As for being free to give anyone copies of MP3s non-commercially, this was indeed one of Napster's arguments (you can't have contributory copyright infringement unless you have copyright infringement). The problem with that argument is that computers are likewise not AHRA devices, and hard disks are not AHRA media. Now, if you use DAT tapes or Audio CD-R to record your MP3s, I would argue you have a case, but IANAL, so my opinion doesn't really mean all that much. As for trading MP3s on non AHRA media, that is almost certainly illegal. Unless of course you're trading certain bootlegs, which are generally not copyrighted by the record company, but by the artist, and many artists have given permission for bootlegs (Counting Crows and Ben Folds Five among them).
If gnutella authors want any chance of avoiding prosecution, under the AHRA, they'd have to register, start paying royalties per copy distributed, and imlement SCMS. Even then (and this is very unlikely to be viable for a free product), I personally doubt gnutella would be considered a "Digital Audo Recording Device". Again, my own layman opinion is that gnutella is probably legal for different reasons, which I'm not getting into right now since I'm already way way off topic.
Suppose I tell him no, you can't enter, and call the police to have him arrested for trespassing. What's he going to do, get a search warrant? On what grounds? These are the questions I'd like to see answered.
The BSA generally gets tipped off by disgruntled employees, who are commonly more than happy to tell the judge enough to get a search warrant. Further, once the BSA shows that you are using the software, it's up to you to show that you have a valid license. That's just the way copyright works, by default, you have no rights (other than fair use).
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.
Better to let AOL pick and give the government veto power. This way you don't sit in court for decades arguing over whether or not the 3 which were picked are fair to AOL. AOL picked them, now all that's left is for the governement to approve them, something which I feel they should do.
If you were the only person in America that sold red widgets, then would you charge a lower price just because you were able to produce at really-high volume?
Additionally, you could sign the serial number with a US Mint secret key, making it not only hard, but impossible for them to place a valid serial number in the chips even if they could procure them.
These chips are not smart, they merely store a 128 bit number. Just as it's possible for serial numbers on bills to have a checksum, if you copy the number bit for bit, you have a valid (though duplicate) serial number.
It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them...
Sounds like the commissioner is right. If there is no cost to the seller, it is an illegal differentiation in price. If they can show damages, such as mechanical breakdown, then it's legal. It is unlikely that insurance costs will be a factor, because generally when I have rented a car I was the one responsible for the optional collision insurance, which they resold through an insurance company. Now, if the insurance company was the one who gave the "fine", they'd have a much better case.
Which, by the way, would be a great idea. Insurance companies could offer discounts for drivers who install GPS monitors in the car. Not only would this reduce the comprehensive insurance, due to greater stolen car recoveries, but also the collision and liability insurance, since they could check your speed and give you an appropriate rate accordingly. I'm not sure how accurate the GPS is, but it could probably even be used to help determine fault if it is accurate enough.
I'm all for this. I happen to be a fast driver, but I also happen to be a safe driver. I also have a $1000 deductible for my insurance, and I'd have a $10,000 deductible if they'd let me. In my perfect world, everyone would have GPSs in their cars, there would be no speeding laws, and insurance would be optional (as long as you have the money to pay for your accidents). If you truly are a safe driver, but the insurance company doesn't think so, take out a home equity loan, use the money you save on insurance payments to pay it back, and insure yourself. Actually, I wish there was a company out there that would let you do this. I don't really feel like dealing with the lawyers and hassle if I ever do get into an accident, so it would be nice to let someone else do it for me.
Technology is a good thing. It is only feared by those who are currently exploiting the loopholes in the current system, and won't be able to exploit the loopholes in the new one. Fewer loopholes are good for everyone.
What is the loss of the phone company when you make a phone call when the ciruits are not full? Nothing. OK, maybe a tiny fraction of electricity, and the potential that the circuits fill.
What is the loss of the car company when you speed? Nothing. OK, maybe a tiny fraction of a reduced mechanical lifetime, and the potential that you get into an accident and cause the company's insurance rates to go up.
Isn't line of sight basically a 2 node network? Does it really make sense to use a protocol that worries about polling and collision detection when RTR and RTS should handle it just fine?
Does your post have any HTML in it? Did you specify "Plain Old Text", or "HTML Formatted"?
Section 15.23. "Equipment authorization is not required for devices that are not marketed, are not constructed from a kit, and are built in quantities of five or less for personal use."
Yeah, God forbid if someone broke into my slashdot account and posted a message as me. I use easy to guess passwords intentionally. This way, if I ever post something I regret, I can just say my password was stolen.
First, one need not defend copyright the way one needs defend a trademark. Copyright doesn't cease to apply simply because I haven't sued anyone yet.
I didn't mean to imply that. In this case, though, we're talking about a known standard. Just as when you post to usenet, you implicitly grant a license to copy your words throughout usenet, by putting up a website which is publically accessible, you implicitly grant a license to display that website in a browser.
Second, you're essentially saying that Microsoft, or any other company, could render all of my pages public domain by introducing a browser that sprinkles "Brought to you by Microsoft" in the page. Since I haven't disabled it, I'm not protecting my copyright... so it's public domain. Er?
If Microsoft introduced MSHTML, and put that as part of the spec, and you knowingly published a website which made absolutely no attempt to disable itself from being viewed with IE, even though it was trivial for you to block that browser, yeah, I think that would be perfectly legal. It wouldn't make anything public domain though.
Third, what about sites that have been around for years or are extremely large? If they were standards-compliant before, why should the burden fall upon me to "fix" something that wasn't broken? It would seem that it would be Microsoft's responsibility to make this work, not mine.
In this situation you would probably get a bit more sympathy from a judge. You won't get an injunction or anything, though, because there is a simple way to stop the infringement. Disable IE from viewing your website. I have no problem with the argument that this is impractical due to Microsoft's monopoly, but this is simply not an issue of copyright. If you want opt-in, set up your webserver to only only allow agents which you explicitly allow. It's that simple.
It is somewhat different when I publish in a public forum on a system I do not own or control.
I see the internet as a public forum which you do not own or control. In any case, I think you have to agree that you are giving some implicit licence when you publish something on the internet. How would a court determine that implicit license? Well, that's what we disagree about.
I really hate comparing this to rape. But even with regard to sex you have to admit there is such a thing as implicit consent. Men and women are not required to sign a contract every time they have sex, and in certain situations a woman can say nothing at all and still be considered by a court of law to have given implied consent.
So, from a purely legal perspective, in some situations, there do need to be measures taken on the part of a woman in order for sex to be considered rape.
If I wanted to make the analogy to rape... What if a woman was on a date with a man, they went back to her place, got undressed, and lay in bed. The man said "I want to have sex with you, but if you don't want to have sex, just tell me to stop". The woman thought to herself, but never expressed to the man, "I shouldn't have to say stop, you should have to get my permission to have sex with me." Then the man proceeded to have sex with the woman. Would you consider that rape?
I agree that it's not as cut and dry as I made it out to be. But it's not as cut and dry as you make it out to be either. Is there an implicit license? Absolutely yes. Does this implicit license include SmartLinking? I guess ultimately there are only 9 people in the US who know.
I still disagree that a publisher needs to take explicit action to keep from issuing an implicit license.
What right does slashdot have to post your comment? You wrote it, therefore you own the copyright on it.
The fact is, you issued an implicit license to slashdot to use that content. Your implicit licence certainly included the right to strip out faulty HTML which would cause problems with their website. Did it include the right to add SmartLinks to your text. I'd say no.
But what if Slashdot added SmartLinks to all of its writeups when a user requested that in his/her preferences. What if there were a checkbox in your user profile, which said "disallow SmartLinks in your posts". And you knew full well about that. Would you say that you are giving Slashdot an implicit license to add SmartLinks to your post? I'd say yes.
Now, arguably, your content is already there, and Microsoft is adding the SmartLink feature after the fact. So for old content maybe it is a different story. But I just find it rediculous to sue a company because you're too lazy to add a little tag to the top of your page. Further, I find it rediculous that copyright law has gotten to this point, but that's a different matter altogether.
So to answer your hypotheticals, I think people should have the right to do whatever the hell they want with your content when you release it onto the internet, as long as it is clear that they are the ones doing those modifications. But, legally, I was only arguing the point of the implicit license for this particular case. If you disagree, that is fine, but comparing what Microsoft is doing to rape is not.
Well, one thing you can do about it is not post your content to the internet to be distributed freely throughout the world. Or you could disable people from using IE. Or you could have a subscription only site, with a click through EULA saying that people will not turn on features without your permission.
In my humble opinion, end users should be able to do anything they want with your website, as long as they don't redistribute it or display it publicly. And in turn that means software developers should be able to make tools which help them do that. Microsoft *is* an exception, to some extent, but only because it is a monopoly.
b) I don't want anyone changing the content of my page, and I have the law to back me up on this.
Sorry, but if you are aware of the "infringement", and do nothing about it, you have just given an implicit license. Since you know about the SmartTags feature, and choose not to disable it with the META tag, you have given an implicit license to Microsoft.
Slashdot Mirror
Sounds like the only solution is to have ZERO MS software installed.
Or to actually pay for your software, and then agree to the audit. Presumably, the audit will be at their expense. Otherwise, yeah, let them raid and sue for damages I guess. Be sure to send them a letter before they raid saying that you are in complete compliance but object to the audit unless they pay for it. I bet you could win the case.
Supply and Demand.
Umm. No. Anyone who has taken Economics 101 would know that supply is the cost of the hunks of metal plus the costs of the people hired to put them together. That's unskilled labor, and the supply curve is extremely elastic.
They were obviously doing a search for music from the group Shakespear's Sister
Or you could just use the word "Trends" like most people do with their marketing information.
And keep it proprietary, like most people do with their marketing information.
On one hand the "law" allows (in the US) software to patented, so it must be a "machine or device".
Software describes a process. The software itself is not patentable, but the process is. While the computer running the software is a "machine or device", MP3 software is only one of many features, therefore it does not pass the "primary purpose" test.
Read the whole of the AHRA, and I think you'll agree that this is a good thing. We don't want SCMS forced into our hard drives and software, just because they happen to be capable of recording music. I'd also suggest you read the DMCA which, just like the AHRA before it, opens up new legal use and statutory licences as well as closing up previous rights.
The BSA may try to confiscate your copies (and a bone-headed judge may permit this), but until they prove that you have no license, you will not owe them any money.
How in the world can you prove that someone doesn't have a license? If you distribute your product directly, I guess you could show your records, and show that you have no record of giving a license to that company, but if you have resellers, it's simply impossible to show that someone doesn't have a license.
I didn't say that the customer had to prove they had a license, or that they had to produce an original document, but surely they have to show some evidence of having a license, perhaps a sales receipt, or a box, or perhaps even testimony.
I agree that if you have a license to use a copyrighted work that is not dependent on paperwork, but a license without any documentation isn't worth the paper it's printed on.
I read this as simply stating that if you recieve a copy, you are not allowed to munge the SCMS (or other) data, however, if it does not already exist, you are under no obligation to add it, even if you are the originator of the recording. So far, I haven't found any reason why an individual ripping a CD, and distributing digital copies of the songs from that CD would be guilty of any crime under the AHRA.
If you use AHRA media CDs. It was ruled that computer CDs are not AHRA media, as they have a primary purpose of non-audio data storage. But, there are Audio CD-Rs, which cost slightly more (due to the royalty), and are legal for certain types of personal home recording (such as copying a friend's tape/CD).
IMO, Napster never had any legs to stand on, although Gnutella client authors (as long as they are non-commercial) should have no risk under AHRA, although there may be other laws which apply. As best I can tell, if you're a non-commercial user, you are free to give anyone you please copies of your MP3's.
For the reasons you mention (as well as the fact that Napster is not a "machine or device", and probably other reasons, Napster does not apply under AHRA. As for being free to give anyone copies of MP3s non-commercially, this was indeed one of Napster's arguments (you can't have contributory copyright infringement unless you have copyright infringement). The problem with that argument is that computers are likewise not AHRA devices, and hard disks are not AHRA media. Now, if you use DAT tapes or Audio CD-R to record your MP3s, I would argue you have a case, but IANAL, so my opinion doesn't really mean all that much. As for trading MP3s on non AHRA media, that is almost certainly illegal. Unless of course you're trading certain bootlegs, which are generally not copyrighted by the record company, but by the artist, and many artists have given permission for bootlegs (Counting Crows and Ben Folds Five among them).
If gnutella authors want any chance of avoiding prosecution, under the AHRA, they'd have to register, start paying royalties per copy distributed, and imlement SCMS. Even then (and this is very unlikely to be viable for a free product), I personally doubt gnutella would be considered a "Digital Audo Recording Device". Again, my own layman opinion is that gnutella is probably legal for different reasons, which I'm not getting into right now since I'm already way way off topic.
Suppose I tell him no, you can't enter, and call the police to have him arrested for trespassing. What's he going to do, get a search warrant? On what grounds? These are the questions I'd like to see answered.
The BSA generally gets tipped off by disgruntled employees, who are commonly more than happy to tell the judge enough to get a search warrant. Further, once the BSA shows that you are using the software, it's up to you to show that you have a valid license. That's just the way copyright works, by default, you have no rights (other than fair use).
Kind of like copying a tape for a friend.
No, copying a tape for a friend is legal under the Audio Home Recording Act.
Better to let AOL pick and give the government veto power. This way you don't sit in court for decades arguing over whether or not the 3 which were picked are fair to AOL. AOL picked them, now all that's left is for the governement to approve them, something which I feel they should do.
If you were the only person in America that sold red widgets, then would you charge a lower price just because you were able to produce at really-high volume?
Of course I would, wouldn't you?
All we need to do is open source the super soaker, and maybe we have something to compete against .NET with.
Additionally, you could sign the serial number with a US Mint secret key, making it not only hard, but impossible for them to place a valid serial number in the chips even if they could procure them.
These chips are not smart, they merely store a 128 bit number. Just as it's possible for serial numbers on bills to have a checksum, if you copy the number bit for bit, you have a valid (though duplicate) serial number.
Sounds like the commissioner is right. If there is no cost to the seller, it is an illegal differentiation in price. If they can show damages, such as mechanical breakdown, then it's legal. It is unlikely that insurance costs will be a factor, because generally when I have rented a car I was the one responsible for the optional collision insurance, which they resold through an insurance company. Now, if the insurance company was the one who gave the "fine", they'd have a much better case.
Which, by the way, would be a great idea. Insurance companies could offer discounts for drivers who install GPS monitors in the car. Not only would this reduce the comprehensive insurance, due to greater stolen car recoveries, but also the collision and liability insurance, since they could check your speed and give you an appropriate rate accordingly. I'm not sure how accurate the GPS is, but it could probably even be used to help determine fault if it is accurate enough.
I'm all for this. I happen to be a fast driver, but I also happen to be a safe driver. I also have a $1000 deductible for my insurance, and I'd have a $10,000 deductible if they'd let me. In my perfect world, everyone would have GPSs in their cars, there would be no speeding laws, and insurance would be optional (as long as you have the money to pay for your accidents). If you truly are a safe driver, but the insurance company doesn't think so, take out a home equity loan, use the money you save on insurance payments to pay it back, and insure yourself. Actually, I wish there was a company out there that would let you do this. I don't really feel like dealing with the lawyers and hassle if I ever do get into an accident, so it would be nice to let someone else do it for me.
Technology is a good thing. It is only feared by those who are currently exploiting the loopholes in the current system, and won't be able to exploit the loopholes in the new one. Fewer loopholes are good for everyone.
What is the loss of the phone company when you make a phone call when the ciruits are not full? Nothing. OK, maybe a tiny fraction of electricity, and the potential that the circuits fill.
What is the loss of the car company when you speed? Nothing. OK, maybe a tiny fraction of a reduced mechanical lifetime, and the potential that you get into an accident and cause the company's insurance rates to go up.
Isn't line of sight basically a 2 node network? Does it really make sense to use a protocol that worries about polling and collision detection when RTR and RTS should handle it just fine?
Does your post have any HTML in it? Did you specify "Plain Old Text", or "HTML Formatted"?
Section 15.23. "Equipment authorization is not required for devices that are not marketed, are not constructed from a kit, and are built in quantities of five or less for personal use."
Yeah, God forbid if someone broke into my slashdot account and posted a message as me. I use easy to guess passwords intentionally. This way, if I ever post something I regret, I can just say my password was stolen.
This is, of course, utter nonsense.
Nuh uh.
First, one need not defend copyright the way one needs defend a trademark. Copyright doesn't cease to apply simply because I haven't sued anyone yet.
I didn't mean to imply that. In this case, though, we're talking about a known standard. Just as when you post to usenet, you implicitly grant a license to copy your words throughout usenet, by putting up a website which is publically accessible, you implicitly grant a license to display that website in a browser.
Second, you're essentially saying that Microsoft, or any other company, could render all of my pages public domain by introducing a browser that sprinkles "Brought to you by Microsoft" in the page. Since I haven't disabled it, I'm not protecting my copyright... so it's public domain. Er?
If Microsoft introduced MSHTML, and put that as part of the spec, and you knowingly published a website which made absolutely no attempt to disable itself from being viewed with IE, even though it was trivial for you to block that browser, yeah, I think that would be perfectly legal. It wouldn't make anything public domain though.
Third, what about sites that have been around for years or are extremely large? If they were standards-compliant before, why should the burden fall upon me to "fix" something that wasn't broken? It would seem that it would be Microsoft's responsibility to make this work, not mine.
In this situation you would probably get a bit more sympathy from a judge. You won't get an injunction or anything, though, because there is a simple way to stop the infringement. Disable IE from viewing your website. I have no problem with the argument that this is impractical due to Microsoft's monopoly, but this is simply not an issue of copyright. If you want opt-in, set up your webserver to only only allow agents which you explicitly allow. It's that simple.
It is somewhat different when I publish in a public forum on a system I do not own or control.
I see the internet as a public forum which you do not own or control. In any case, I think you have to agree that you are giving some implicit licence when you publish something on the internet. How would a court determine that implicit license? Well, that's what we disagree about.
I really hate comparing this to rape. But even with regard to sex you have to admit there is such a thing as implicit consent. Men and women are not required to sign a contract every time they have sex, and in certain situations a woman can say nothing at all and still be considered by a court of law to have given implied consent.
So, from a purely legal perspective, in some situations, there do need to be measures taken on the part of a woman in order for sex to be considered rape.
If I wanted to make the analogy to rape... What if a woman was on a date with a man, they went back to her place, got undressed, and lay in bed. The man said "I want to have sex with you, but if you don't want to have sex, just tell me to stop". The woman thought to herself, but never expressed to the man, "I shouldn't have to say stop, you should have to get my permission to have sex with me." Then the man proceeded to have sex with the woman. Would you consider that rape?
I agree that it's not as cut and dry as I made it out to be. But it's not as cut and dry as you make it out to be either. Is there an implicit license? Absolutely yes. Does this implicit license include SmartLinking? I guess ultimately there are only 9 people in the US who know.
I still disagree that a publisher needs to take explicit action to keep from issuing an implicit license.
What right does slashdot have to post your comment? You wrote it, therefore you own the copyright on it.
The fact is, you issued an implicit license to slashdot to use that content. Your implicit licence certainly included the right to strip out faulty HTML which would cause problems with their website. Did it include the right to add SmartLinks to your text. I'd say no.
But what if Slashdot added SmartLinks to all of its writeups when a user requested that in his/her preferences. What if there were a checkbox in your user profile, which said "disallow SmartLinks in your posts". And you knew full well about that. Would you say that you are giving Slashdot an implicit license to add SmartLinks to your post? I'd say yes.
Now, arguably, your content is already there, and Microsoft is adding the SmartLink feature after the fact. So for old content maybe it is a different story. But I just find it rediculous to sue a company because you're too lazy to add a little tag to the top of your page. Further, I find it rediculous that copyright law has gotten to this point, but that's a different matter altogether.
So to answer your hypotheticals, I think people should have the right to do whatever the hell they want with your content when you release it onto the internet, as long as it is clear that they are the ones doing those modifications. But, legally, I was only arguing the point of the implicit license for this particular case. If you disagree, that is fine, but comparing what Microsoft is doing to rape is not.
Unknowingly infringing on copyright is not a criminal offense, it is a civil offense.
Breaking the law is breaking the law, but obeying an implicit license is not breaking the law.
Well, one thing you can do about it is not post your content to the internet to be distributed freely throughout the world. Or you could disable people from using IE. Or you could have a subscription only site, with a click through EULA saying that people will not turn on features without your permission.
In my humble opinion, end users should be able to do anything they want with your website, as long as they don't redistribute it or display it publicly. And in turn that means software developers should be able to make tools which help them do that. Microsoft *is* an exception, to some extent, but only because it is a monopoly.
Last time I checked, rape laws were different from copyright law.
b) I don't want anyone changing the content of my page, and I have the law to back me up on this.
Sorry, but if you are aware of the "infringement", and do nothing about it, you have just given an implicit license. Since you know about the SmartTags feature, and choose not to disable it with the META tag, you have given an implicit license to Microsoft.