The globalization of the economy vai the net is going to create a huge trademark furball. Until recently, someone in Italy and someone in Ventura, California didn't have to worry if their product names were similar. Those two product markets were so distinct that it didn't matter. As we break down the barriers between markets through the net, conflicts that didn't used to exist are going to crop up. For example, let's say there is a small company in Vermont selling a product locally under a given name. There is a company in Texas selling something else under the same or a similar name. Both companies have been using the name for 30 years. Both start selling over the net, creating confusion. Now what happens? Obviously, the same can happen with two large companies from different countries. Trademark law was not really designed to handle these situations in an elegant manner.
Well, this gets us back into the "burglary tools" discussion of last week. BTW, IAAL, so I understand fairly well the importance of intent. And your point that the "heart of the argument is about the legality of uses for information rather than the legality of the mechanisms themselves" was exactly my point. I don't understand how making it illegal to break copy protection suddenly means that open source and open content models are doomed. Again, somebody explain how these amendments stop a band from distributing free music. The idea that companies are going to stop making MP3 players because the record companies want them to is absurd. Those same companies took a run at companies like Diamond Multimedia and lost. And if these amendments are so powerful, how come Sony was not successful in hanging onto its injunction blocking connectix from selling the VPS? I'm sure Sony's IP lawyers are competent. I guess I find it frustrating that there is this weird reaction to laws that are passed to address issues relating to computers. People seem to assume that they are going to have a lot more significance than they really do. Maybe this comes from not understanding the laws in the first place, so that when one does come to understand an area of the law, the impact of all that proceeded as well as the new aspects hits at once. I do agree that making an ISP or a university potentially liable is poor policy. On the other hand, I understand this effort because otherwise the transactional costs are too high to pursue these infringements. This is a shifting of the burden of enforcement from the copyright holder to others. Again, I think this is poor policy.
I think I must be missing something about Mr. Katz's argument, or else it is simply flawed. As I read the provisions of the DMCA amendments to the basic copyright provisions, it makes it a copy right violation to enable the distribution of copyright protected material, e.g., to "crack" copyright protection on a computer game (I'm not suggesting it's limited to that situation). How does this prevent bands from freely distributing music? The law doesn't make it illegal to give things away. Mr. Katz seems very concerned that the new "internet culture" based on free distribution models, open source software, etc. is threatened by these provisions. While I certainly understand how the DeCSS thing runs into problems with this law, how does a band that wants to freely distribute its music run into problems? MP3 is a file format, not a hack that allows circumvention of copyright protection. And by the way, is my CD-RW burner illegal because I could use it to "circumvent" the fact that there didn't use to be a way to copy audio CDs?
I feel the need to confess that, as I recall, my dog picked up my TI/99 in her mouth, carried it to the backyard, and then proceeded to toss it around the porch until the case cracked and the board spilled out. I think I kept the board until a few years ago. The dog also took an honest run at my Atari 2600, but a flying leap over the sofa to tackle her managed to prevent anything more than some slober and a few tooth marks.
It's pretty much universal that possession of certain tools violates criminal laws when the intent to use them improperly is present. This is really a mens rea issue. A locksmith is not violating any criminal laws when he carries his tool box around, but if a cat burglar is walking down the street with his lockpick set, he has committed a crime even if he hasn't gotten far enough to be charged with attempted burglary. Now, you can conisder a law that outlaws possession of certain tools silly, but it is pretty well entrenched in the anglo american justice system. So it isn't mere ownership, its ownership plus criminal intent.
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The globalization of the economy vai the net is going to create a huge trademark furball. Until recently, someone in Italy and someone in Ventura, California didn't have to worry if their product names were similar. Those two product markets were so distinct that it didn't matter. As we break down the barriers between markets through the net, conflicts that didn't used to exist are going to crop up. For example, let's say there is a small company in Vermont selling a product locally under a given name. There is a company in Texas selling something else under the same or a similar name. Both companies have been using the name for 30 years. Both start selling over the net, creating confusion. Now what happens? Obviously, the same can happen with two large companies from different countries. Trademark law was not really designed to handle these situations in an elegant manner.
Well, this gets us back into the "burglary tools" discussion of last week. BTW, IAAL, so I understand fairly well the importance of intent. And your point that the "heart of the argument is about the legality of uses for information rather than the legality of the mechanisms themselves" was exactly my point. I don't understand how making it illegal to break copy protection suddenly means that open source and open content models are doomed. Again, somebody explain how these amendments stop a band from distributing free music. The idea that companies are going to stop making MP3 players because the record companies want them to is absurd. Those same companies took a run at companies like Diamond Multimedia and lost. And if these amendments are so powerful, how come Sony was not successful in hanging onto its injunction blocking connectix from selling the VPS? I'm sure Sony's IP lawyers are competent. I guess I find it frustrating that there is this weird reaction to laws that are passed to address issues relating to computers. People seem to assume that they are going to have a lot more significance than they really do. Maybe this comes from not understanding the laws in the first place, so that when one does come to understand an area of the law, the impact of all that proceeded as well as the new aspects hits at once. I do agree that making an ISP or a university potentially liable is poor policy. On the other hand, I understand this effort because otherwise the transactional costs are too high to pursue these infringements. This is a shifting of the burden of enforcement from the copyright holder to others. Again, I think this is poor policy.
I think I must be missing something about Mr. Katz's argument, or else it is simply flawed. As I read the provisions of the DMCA amendments to the basic copyright provisions, it makes it a copy right violation to enable the distribution of copyright protected material, e.g., to "crack" copyright protection on a computer game (I'm not suggesting it's limited to that situation). How does this prevent bands from freely distributing music? The law doesn't make it illegal to give things away. Mr. Katz seems very concerned that the new "internet culture" based on free distribution models, open source software, etc. is threatened by these provisions. While I certainly understand how the DeCSS thing runs into problems with this law, how does a band that wants to freely distribute its music run into problems? MP3 is a file format, not a hack that allows circumvention of copyright protection. And by the way, is my CD-RW burner illegal because I could use it to "circumvent" the fact that there didn't use to be a way to copy audio CDs?
I feel the need to confess that, as I recall, my dog picked up my TI/99 in her mouth, carried it to the backyard, and then proceeded to toss it around the porch until the case cracked and the board spilled out. I think I kept the board until a few years ago. The dog also took an honest run at my Atari 2600, but a flying leap over the sofa to tackle her managed to prevent anything more than some slober and a few tooth marks.
It's pretty much universal that possession of certain tools violates criminal laws when the intent to use them improperly is present. This is really a mens rea issue. A locksmith is not violating any criminal laws when he carries his tool box around, but if a cat burglar is walking down the street with his lockpick set, he has committed a crime even if he hasn't gotten far enough to be charged with attempted burglary. Now, you can conisder a law that outlaws possession of certain tools silly, but it is pretty well entrenched in the anglo american justice system. So it isn't mere ownership, its ownership plus criminal intent.