They do send armed thugs and even hitmen after you. Except the difference is these thugs and hitmen are paid for by your tax dollars. They make a decision, get the courts to rubber stamp it and then send gov't agents to enforce it, by any means necessary. Government can and does use force, even lethal force, when people don't play by its rules - which often include obeying the judgement of a court which is just rubber stamping a corporate edict.
Scientology didn't *have to* spend a lot of money to do what they did (send a DMCA infringment notice/takedown demand). You don't even need to be a lawyer to do it, *I* (a lay person) could easily make a legal DMCA notice. The law spells it out quite clearly. They very well may have used a lawyer, but one hour of one lawyer's time is not a huge amount of money. At MOST a few thousand dollars I would imagine.
Wrong, a DMCA violation is not an infrigement, it is just a DMCA violation.
This is good because contributory and vicarious infrigement exists does not imply that these theories apply to DMCA violations, which are different things. This is bad because fair use is a defense to infrigement, and not to a DMCA violation, which is a different thing. What may be uncertain is whether the courts will invent contributory and vicarious DMCA violation theories or whether the DMCA itself makes such activities offenses or whether a anti-consumer judge would say it does.
I am not a lawyer, ask a lawyer for real legal advice.
Today in salon I saw a great quote: Are the makers of pantyhose liable for bank robberies, because they are fully aware that robbers use thier products for concealment?
That analogy is flawed, the real situation is WORSE than that.
Knowlege is NOT required for vicarious liability.
The correct analogy would be the makers of pantyhose being liable for bank robberies, even if they didn't know and had no reason to know their product was being used. To analogize the 3 tests for vicarious liability: Direct infrigement would translate to people robbing banks using pantyhose as a disguise. Financial benefit: if someone buys pantyhose to rob a bank, does the manufacturer get money - Yes. Ability to control - well theoretically the pantyhose people could refuse to sell to people with criminal records. So now they would have a requirement to, or get sued.
Outlandish, I know, but the Napster decision is right up there with that. It is just as unreasonable to scan every request that goes through Napster's server against all possible infringements. They would have to increase their server's resources by at least 1 or 2 orders of magnitude.
Courts would recognize the pantyhose example as violating common sense. But they lose all notion of common sense in the digital realm. Indirect infringement does not exist in the law as written, the courts made it up, by taking real world doctrines of liability (contributory="aiding and abetting", vicarious=like employer liability) and misapplying them and misinterpreting them in the digital realm.
Excellent post. Very few people "get it" about what the copy protection feature actually does. You did.
Maybe we need to push for more "Open Content". Open source everything, not just code. It works GREAT there, but there is more than just code. We need open music, open video, open everything.
17 USC 1201{k} of the DMCA mandates that VCR's have copy protection which prevents recording of Macrovision encoded signals.
Failure to do so can result in being sued and being order to pay up all your profits, the "injured" parties losses and/or statuatory damages (i.e. even if you didn't make money, and they didn't lose anything, you can still be ordered to pay them off!), injunctions, destruction or sale of your facilities, and 5 years in prison/$500,000 fine for the first offense, 10 years/$1,000,000 for any subsequent ones.
That's gov't power for ya.
They just need to keeping "renting" (*) Congresspeople and judges to enforce their agenda with government force.
(*) You don't really buy influence and then be done with it, you have to keep paying them off - that is why campaign finance reform is important - once the corrupt money stops, so does the favors).
The entertainment industry pays off both parties a LOT of money each and every year. I would not be suprised if Macrovision paid some people off as well.
What if one person distributed just the keys, and another distributes just the decoder? Neither part alone is a circumvention device. If the 2 parties don't work together (do avoid them being considered "in concert with each other" under the law), would that be legal? Of course the end user who puts it together is likely to be guilty of creating a circumvention device.
Wrong! It is not illegal to have. It is illegal to produce, distribute, or use.
Perhaps the gov't could stretch the meaning of "produce" to include a copy being made of it, even though it was only in memory or for one's own use. Heck, they did that with copyright.
Weakness of the system is not relevant under the DMCA. CSS could have been XOR 255 and DeCSS would be just as illegal. Judge Kaplan didn't say anything about CSS meeting any standard of being difficult to break as a part of why he convicted the defendants.
So we send packets with just ACK set and hack the TCP/IP stacks. Perhaps they could make it so packets need at least one of source and destination being a "registered" IP. There are still ways to hack it. On cable modem send a ping with a forged source of your intended destination to a registered IP. You destination gets back the reply which has N bytes of your original packet in it. It is VERY hard to prevent 2 entities from communicating data that a third party does not want sent. Look into mandatory access control (military grade security, Orange book ratings B1, B2, and B3). It is very complicated.
Or one could encode data in email messages. Make it look like English, at least close enough to confuse filters (i.e. something more subtle than uuencode). Not that hard to do.
Plus ISP's (which include telco's) might not appreciate blanket injuctions denying user-to-user rather than user-trusted server communication. Could hurt their bottom line. Telco's are mostly sleeping giants, but they'll wake at this. They've got WAY more money than Hollywood or the RIAA or the software police.
Well there is a difference between the law not mandating that fair use be easy and the US situation with he DMCA - where if fair use is hard, then it is illegal. Big difference.
If you want to complain about frivilous lawsuits, remember, lawyers don't sue people, plaintifs sue people.
Remember too, neither laywers nor plantiffs can enforce a judgement directly. They need to use GOVERNMENT to do so. Blame the government for enforcing the whims of lawyers and plaintiffs. Vote the officials out of office.
(Unless you got a felony conviction - which in some states bans you from voting for life - great system to cut the power of "dissidents" and those the gov't does not like - also useful for banning those without felony convictions who you don't like - just have the election officials be provided with bad data saying you are a felon when you are not. Seems to have worked in Florida...)
Let me spell it out for those that don't get the DMCA's full implications.
With DMCA:
Fair use being difficult = Fair use being illegal.
"Hacking" "protection" (restriction) systems fixes the technical issue, but causes a legal issue.
"Hacking" is irrelevant to allowing use to LEGALLY make fair use. Fair use is, when not wanted by the copyright holder, illegal, just as piracy is. If fair use is illegal, just as is piracy, what is the legal incentive for people who want fair use not to pirate? Either way they break the law...
DMCA encourages piracy - before there was a legality distinction between fair use and piracy.
It is a cat and mouse game where the gov't, with the DMCA, has made it illegal for the mouse to run from the cat.
1. Fair use was legal.
2. Content controls stopped one from making fair use.
3. People found a technical means to make fair use despite the content controls.
4. GOVERNMENT made number 3 illegal.
(start of rant)
Not RIAA, not MPAA, not DVDCCA, not Cactus, not Macrovision corp, not TTR. GOVERNMENT. Using our tax dollars to restrict our rights with ARMED force. A court is just a shield to make the guns of gov't pointing at your head socially acceptable. It is still force. Fight even for a right that the law (which includes the Constitution) says exists, but gov't does not, and they'll sentence you to prison or order you to give them or some other party your money. Resist and you literally can have Federal marshalls putting a gun to your head and even shooting you. GOVERNMENT IS THE PROBLEM HERE FOLKS. CSS and all the other schemes would not be such a big issue. If DeCSS was LEGAL, the DVD mess would not be as bad. Even if it is legal under law, Judge Kaplan, who can and has fired the guns of gov't at the DeCSS defendents (albeit it figurativly) is a man with an opinion that counts more than yours or even the law if you end up in his courtroom.
Sad but true, even if you can afford a good or great lawyer AND are right you can still LOSE. The DeCSS defendants did and are barred for life from distributing their product and are ordered to pay for the costs of the procedings against them!
(that is adding insult to injury).
(end of rant)
#1, #2, #3 were all legal. It was a technical ballte which each attacka nd counter-attack was legal. Gov't was not involved. It was capitalistic. Then gov't stepped in, made #3 illegal. This is merchantilism - where the gov't restricts the free market to help the corporations. This is a lot like Fascism/National Socialism's economic policy.
Now #2 is legal, #1 is legal in theory, but since 1 is impossible without doing #3, and #3 is illegal, #1 might as well be illegal. It is either impossible or illegal if you take steps to make it possible.
So the gov't can say fair use is still legal - even if any method to make it possible is banned.
They get their fascism but can deny they banned fair use. They just say they are stopping illegal "hacking"/cracking. And gloss over the distinction between breaking into someone else's system, and hacking a system YOU OWN. The anti-"hacker" hysteria works to their advantage. DMCA is seen as pro-capitalist when it is anti-capitalist, pro-merchantilist, pro-fascist, and un-American.
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Yeah, but perhaps they use MySQL as their database... ;
They do send armed thugs and even hitmen after you. Except the difference is these thugs and hitmen are paid for by your tax dollars. They make a decision, get the courts to rubber stamp it and then send gov't agents to enforce it, by any means necessary. Government can and does use force, even lethal force, when people don't play by its rules - which often include obeying the judgement of a court which is just rubber stamping a corporate edict.
It is the more "civilized" type of gangsterism.
1. The school's legal right to censor.
2. Whether censorship is a good thing.
One can acknowlege #1 while saying #2 is wrong
Issue an IPO and rake in the cash!!! ;)
Oh darn, that doesn't work anymore...
Dude, you need help. ;)
(and I thought *I* was bad!)
Scientology didn't *have to* spend a lot of money to do what they did (send a DMCA infringment notice/takedown demand). You don't even need to be a lawyer to do it, *I* (a lay person) could easily make a legal DMCA notice. The law spells it out quite clearly. They very well may have used a lawyer, but one hour of one lawyer's time is not a huge amount of money. At MOST a few thousand dollars I would imagine.
CDDB has less money than the MPAA, and if you can avoid being sued in the Southern District of New York, your chances might be better.
Metallica does not deserve to have a copyright on their songs. See, one of the requirements of copyright is that the content has to be creative.
This is good because contributory and vicarious infrigement exists does not imply that these theories apply to DMCA violations, which are different things. This is bad because fair use is a defense to infrigement, and not to a DMCA violation, which is a different thing. What may be uncertain is whether the courts will invent contributory and vicarious DMCA violation theories or whether the DMCA itself makes such activities offenses or whether a anti-consumer judge would say it does.
I am not a lawyer, ask a lawyer for real legal advice.
That analogy is flawed, the real situation is WORSE than that.
Knowlege is NOT required for vicarious liability.
The correct analogy would be the makers of pantyhose being liable for bank robberies, even if they didn't know and had no reason to know their product was being used. To analogize the 3 tests for vicarious liability: Direct infrigement would translate to people robbing banks using pantyhose as a disguise. Financial benefit: if someone buys pantyhose to rob a bank, does the manufacturer get money - Yes. Ability to control - well theoretically the pantyhose people could refuse to sell to people with criminal records. So now they would have a requirement to, or get sued.
Outlandish, I know, but the Napster decision is right up there with that. It is just as unreasonable to scan every request that goes through Napster's server against all possible infringements. They would have to increase their server's resources by at least 1 or 2 orders of magnitude.
Courts would recognize the pantyhose example as violating common sense. But they lose all notion of common sense in the digital realm. Indirect infringement does not exist in the law as written, the courts made it up, by taking real world doctrines of liability (contributory="aiding and abetting", vicarious=like employer liability) and misapplying them and misinterpreting them in the digital realm.
Maybe we need to push for more "Open Content". Open source everything, not just code. It works GREAT there, but there is more than just code. We need open music, open video, open everything.
Failure to do so can result in being sued and being order to pay up all your profits, the "injured" parties losses and/or statuatory damages (i.e. even if you didn't make money, and they didn't lose anything, you can still be ordered to pay them off!), injunctions, destruction or sale of your facilities, and 5 years in prison/$500,000 fine for the first offense, 10 years/$1,000,000 for any subsequent ones.
That's gov't power for ya.
They just need to keeping "renting" (*) Congresspeople and judges to enforce their agenda with government force.
(*) You don't really buy influence and then be done with it, you have to keep paying them off - that is why campaign finance reform is important - once the corrupt money stops, so does the favors). The entertainment industry pays off both parties a LOT of money each and every year. I would not be suprised if Macrovision paid some people off as well.
That might actually be possible...
(Something using pack and feeding it into eval comes to mind...)
Shhh. Don't give them any ideas!
What if one person distributed just the keys, and another distributes just the decoder? Neither part alone is a circumvention device. If the 2 parties don't work together (do avoid them being considered "in concert with each other" under the law), would that be legal? Of course the end user who puts it together is likely to be guilty of creating a circumvention device.
Perhaps the gov't could stretch the meaning of "produce" to include a copy being made of it, even though it was only in memory or for one's own use. Heck, they did that with copyright.
Follow the link for more info on the DMCA.
Just like DVDs lose all protection because DeCSS was available?
Well we know that's wrong. What's the (legal) difference?
Weakness of the system is not relevant under the DMCA. CSS could have been XOR 255 and DeCSS would be just as illegal. Judge Kaplan didn't say anything about CSS meeting any standard of being difficult to break as a part of why he convicted the defendants.
So we send packets with just ACK set and hack the TCP/IP stacks. Perhaps they could make it so packets need at least one of source and destination being a "registered" IP. There are still ways to hack it. On cable modem send a ping with a forged source of your intended destination to a registered IP. You destination gets back the reply which has N bytes of your original packet in it. It is VERY hard to prevent 2 entities from communicating data that a third party does not want sent. Look into mandatory access control (military grade security, Orange book ratings B1, B2, and B3). It is very complicated.
Or one could encode data in email messages. Make it look like English, at least close enough to confuse filters (i.e. something more subtle than uuencode). Not that hard to do.
Plus ISP's (which include telco's) might not appreciate blanket injuctions denying user-to-user rather than user-trusted server communication. Could hurt their bottom line. Telco's are mostly sleeping giants, but they'll wake at this. They've got WAY more money than Hollywood or the RIAA or the software police.
30 MILLION?! Are you serious??
Well there is a difference between the law not mandating that fair use be easy and the US situation with he DMCA - where if fair use is hard, then it is illegal. Big difference.
Remember too, neither laywers nor plantiffs can enforce a judgement directly. They need to use GOVERNMENT to do so. Blame the government for enforcing the whims of lawyers and plaintiffs. Vote the officials out of office.
(Unless you got a felony conviction - which in some states bans you from voting for life - great system to cut the power of "dissidents" and those the gov't does not like - also useful for banning those without felony convictions who you don't like - just have the election officials be provided with bad data saying you are a felon when you are not. Seems to have worked in Florida...)
Good points.
Let me spell it out for those that don't get the DMCA's full implications.
With DMCA:
Fair use being difficult = Fair use being illegal.
"Hacking" "protection" (restriction) systems fixes the technical issue, but causes a legal issue.
"Hacking" is irrelevant to allowing use to LEGALLY make fair use. Fair use is, when not wanted by the copyright holder, illegal, just as piracy is. If fair use is illegal, just as is piracy, what is the legal incentive for people who want fair use not to pirate? Either way they break the law...
DMCA encourages piracy - before there was a legality distinction between fair use and piracy.
That is no longer the case.
It is a cat and mouse game where the gov't, with the DMCA, has made it illegal for the mouse to run from the cat.
1. Fair use was legal.
2. Content controls stopped one from making fair use.
3. People found a technical means to make fair use despite the content controls.
4. GOVERNMENT made number 3 illegal.
(start of rant)
Not RIAA, not MPAA, not DVDCCA, not Cactus, not Macrovision corp, not TTR. GOVERNMENT. Using our tax dollars to restrict our rights with ARMED force. A court is just a shield to make the guns of gov't pointing at your head socially acceptable. It is still force. Fight even for a right that the law (which includes the Constitution) says exists, but gov't does not, and they'll sentence you to prison or order you to give them or some other party your money. Resist and you literally can have Federal marshalls putting a gun to your head and even shooting you. GOVERNMENT IS THE PROBLEM HERE FOLKS. CSS and all the other schemes would not be such a big issue. If DeCSS was LEGAL, the DVD mess would not be as bad. Even if it is legal under law, Judge Kaplan, who can and has fired the guns of gov't at the DeCSS defendents (albeit it figurativly) is a man with an opinion that counts more than yours or even the law if you end up in his courtroom.
Sad but true, even if you can afford a good or great lawyer AND are right you can still LOSE. The DeCSS defendants did and are barred for life from distributing their product and are ordered to pay for the costs of the procedings against them!
(that is adding insult to injury).
(end of rant)
#1, #2, #3 were all legal. It was a technical ballte which each attacka nd counter-attack was legal. Gov't was not involved. It was capitalistic. Then gov't stepped in, made #3 illegal. This is merchantilism - where the gov't restricts the free market to help the corporations. This is a lot like Fascism/National Socialism's economic policy.
Now #2 is legal, #1 is legal in theory, but since 1 is impossible without doing #3, and #3 is illegal, #1 might as well be illegal. It is either impossible or illegal if you take steps to make it possible.
So the gov't can say fair use is still legal - even if any method to make it possible is banned.
They get their fascism but can deny they banned fair use. They just say they are stopping illegal "hacking"/cracking. And gloss over the distinction between breaking into someone else's system, and hacking a system YOU OWN. The anti-"hacker" hysteria works to their advantage. DMCA is seen as pro-capitalist when it is anti-capitalist, pro-merchantilist, pro-fascist, and un-American.
As for the USA, such boxes are now ILLEGAL. Thanks to the DMCA.