Initial Disclaimer: IANAL but I am a law student who will practice copyright / technology law
With all due respect, I disagree strongly with your comment.
You said...
and what I say in class is my intellectual property
Repeat after me: copyright is not an absolute right.
Go ahead, repeat it: copyright is not an absolute right.
There is something called Fair Use. I should know, as I rely upon it when creating my podcast, [shameless plug] Life of a Law Student. In LoaLS I build upon my notes from the lectures I took part in at law school to create audio episodes explaining the cases and the law. I then make these episodes available, for free, to anyone who wants to listen and/or download. They are licensed as CC-Attribution and GNU FDL to enable others to build upon them freely.
Out of respect, I informed my profs and the administration what I was planning on doing before I started. Most thought it was a great idea or at least would not stand in my way. Unfortunately, I had one of my professors tell me that he only gave permission for his students to take notes for their own personal use, and so he wouldn't allow me to do LoaLS off of his class. I politely told him I wasn't seeking his permission because my Use was a Fair one and thanked him for his time.
Fair Use has four articulated prongs (although there are potentially more factors to balance).
First, what is the nature of the new work? Is it transformative or merely derivative; is it educational and noncommercial or commercial?
Second, what is the amount of the old work re-used?
Third, is the old work largely creative or largely fact-based?
Fourth, what is the impact by the new work on the market for the old work? The first and fourth prongs are given considerably more weight than the second and third prongs.
Let's consider a student setting up a tape recorder and simply recording your lectures. (We'll set aside any Honor Code violations that explicitly give you the right to ban taping; we'll only deal with your "intellectual property" right.)
First, if the students aren't selling the recordings and using the recordings to help themselves and others learn, prong one cuts in their favor. Also, they're transforming your ephemeral audio into more durable format, so prong one further cuts in their favor under the transformative question.
Secondly, although they may be taping the whole old work and prong two cuts against a finding of Fair Use, this is only one prong and a less important one at that.
Third, your lecture is likely primarily fact-driven, so the third prong cuts in favor of finding Fair Use.
Finally, you're most likely not selling your existing lectures in a recorded format. You may be selling your lectures via tuition at the University, but so long as these tapes are not serving as a substitute for the University experience and/or degree, you're not being harmed. (On the contrary, I've had many people tell me they decided to go to law school because of LoaLS, because it de-mystified what law school was. In this way I'm helping the market for my law school professors, and so your hypothetical recording students could be helping the market for your copyrighted works.)
In summary, a student would likely have a legal right to record your lectures under Fair Use because three of the four prongs (and both of the important ones) would cut in their favor. If you would like make your lectures available for sale or distribution that might change the analysis. But the key thing is to disabuse yourself of this notion that your "intellectual property" is an absolute. Fair Use is explicitly codified in the Copyright Act because it is recognized that oftentimes the incu
Disclaimer: I believe Google is in the right here, but am just trying to explain what the judge ruled.
What you are confusing here are direct infringement (the making of the thumbnails) and vicarious / contributory infringement (which is where other sites do direct infringement and Google simply links to them). The judge ruled that the claims against Google for contributory and vicarious infringement were largely without merit, and denied an injunction. However, the claim that Google directly infringed by making the thumbnail had some merit to it, enough to get an injunction.
Perfect 10 is still able to sue the sites that are directly infringing by putting up full-size copies. In fact, I believe they are suing those sites. But as a preliminary matter Google's making of the thumbnail was determined to be an infringement as well.
On topic, Google can't possibly be held responsible for the actions of these sites
The preliminary injunction related to Google directly infringing by making the thumbnail. The judge felt the Fair Use analysis was close but ultimately tipped in Perfect 10's favor. This was largely because P10 had started selling the thumbnails for viewing on cell phones, and so Google's thumbnails were serving as a market substitute in that respect.
The vicarious and contributory liability theories ("the actions of these [other] sites") were found to be largely without merit.
Actually, you, me, and everyone else on this planet has what are termed Fair Use Rights
Only if you define "everyone else on the planet" as "United States citizens." Britian, Canada, Australia and some other countries have what is termed Fair Dealing. It is a related, but ultimately different, doctrine from Fair Use. I haven't studied it enough to comment on it beyond it generally gives less protection to society at large than Fair Use does.
Other countries may or may not have a Fair Use or Fair Dealing aspect to their copyright law. I haven't yet formally studied international copyright, but hope to in my last two years of law school.
I explain the facts of each case, operating under the assumption that listeners have not been able to read the case before hand. (Not everyone has Lexis or West, after all.) Since I'm not capturing raw audio, the socratic method isn't too much of an impediment. I do ask some questions and then answer them, but it's not in a conscious attempt to emulate the socratic method.
A lot of my listeners are incoming law students. They're not trying to use my episodes as substitutes for lecture, but rather as a means of getting exposure to the material before they start class. I've also talked to some current students who use the audio as a means of review / additional exposure while they exercise or drive to school.
You are correct that copyright doesn't attach until fixation, but my instructors almost certainly have outlined their lectures in hand-written notes or electronic files. Therefore my copyright questions revolve around potential infringement of those outlines.
One of the first things that I do is I try to focus on the uncopyrightable case law or arguments that underlie the discussion. I try to avoid discussing detailed or elaborate hypotheticals that the instructors toss out, as these would be protectable creative expression.
As to the four prongs of Fair Use, here's a quick and dirty analysis.
1) transformation and commercial / noncommercial
Since my instructors have never captured in audio their lectures, the copyright interest in question is in the written notes. I am transforming those notes into audio, which adds value and cuts in favor of Fair Use. Additionally, my aim is noncommercial and educational.
2) nature of copyrighted work (fiction or non-fiction)
The law and policy arguments are non-fiction, so this prong cuts in my favor. Additionally, as I mentioned above I try to avoid creative examples.
3) amount and substantiality in proportion to whole work
As I am creating new expression from unprotectable content / ideas, the amount of the original outlines that resurface in my audio is minimal. Hence, another prong cuts in my favor.
4) effect of the use upon the market
Life of a Law Student cannot confer JDs, so I am obviously not serving as a substitute for my professor's services at Cincinnati's law school. If anything, I am stimulating demand as people become more interested in law from listening.
I've been recreating my law school lectures at the University of Cincinnati (where I am a first-year student focusing on copyright and technology law). Instead of recording the raw lecture audio, and dealing with the copyright and privacy concerns, I've been taking detailed notes, adding my own analysis, and capturing new creative expression. (Yes there are still some copyright issues, but my lawyer and I are in agreement that what I am doing does fall under Fair Use.) This new creative expression is then placed under CC-Attribution and the GNU FDL so others can do new and innovative things with it.
I recorded roughly one 15-20 minute episode per lecture, with about 40 lectures in each of my four substantive classes.
My episodes are available for manual download and in podcast format through the iTunes Music Store (search for "Life of a Law Student"). This semester I have recruited some additional students to come on board. This way we can expand to other law schools and to undergraduate law / political science courses.
Here is the site, and I am still looking for students to help. Additionally, if you have technology skills (this is Slashdot after all), I need volunteers as we revamp our back-end software and deal with an influx of new material.
Contact me if you are interested in being a part of this.
- Neil Wehneman
P.S. For those who are wondering if my "re-lectures" are credible, I scored a 3.77 GPA last semester. Although I don't get my class rank for a few more days, I've been told by the administration that this should land me in the top 10% of the class.
You know the drill: IANAL, but I am a law student. Also, I view EULAs to be legal abominations that should not be enforced by state or federal courts for a number of policy reasons.
reselling Windows is a legal right regardless of the contents of the EULA
No. Reselling Windows is explicitly a legal right regardless of the contents of the EULA in those jurisdictions that have ruled so. A federal district court decision is binding only in that district. A district may be anywhere from a fourth to a whole of a state. California and Texas both have four districts, so based solely on your referenced decisions this behavior is explicilty allowed, as a matter of law, only in those parts of those states.
And even then, it's not a given. I'd have to read the opinions (don't have time now), but if the judges actually relied on federal law (copyright right of first sale) as opposed to sitting in diversity and applying state contract law (which EULAs tend to fall under), then it would be binding. If the courts relied on state contract law, then the decision isn't even binding on those state courts that fall within the district. It does, however, remain persuasive ("persuasive" being a term of art.) Also, sister districts within a state tend to look at each other as very persuasive.
As a quick refresher, federal district court decisions relying on federal law are binding on state and federal courts in those same districts. Federal circuit courts relying on federal law are binding on state and federal courts in those same circuits (which cover multiple states). Federal supreme court decisions relying on federal law are binding on state and federal courts throughout the nation. If any federal court sits in diversity and relies on state law, then the decision is only persuasive, and is less persuasive outside of the federal court's jurisdiction.
You wrote: Insurance company knows that no open source developer has the money to sue
And that is why the American legal system has a contingency fee option. Yes, it is maligned in the press and by much of popular opinion. But yes, I am glad we have it.
Instead of requiring "the little guy" (in this case an open source developer) to have the cash himself to hire a legal team and pursue recourse in the courts, he can present his case to a firm that will represent him for a percentage of the recovery. This keeps the doors of the courthouse open to him, even though all litigation (contingency or not) is very expensive.
A common objection to a contingency arrangement is that the percentage for the lawyer (generally 20-40% I believe) is very high, perhaps even predatory. The response to that is that the recovery figure pays for the instant plaintiff's costs in addition to the costs of plaintiffs that the firm represents but who ultimately do not recover. After all, there is no such thing as a 100% certain case.
Remember, under a contingency agreement the firm eats the cost of litigation when unsuccessful. This is part of the reason why the "frivolous lawsuit epidemic" is over-exaggerated: a lawyer / firm is not going to take a case that they know is frivolous and that they will almost certainly lose. Lawyers may be blood-suckers, but they are blood-suckers with at least 7 years of advanced education. They are (generally) not stupid.
Do I think a contingency arrangement is perfect? No, of course not. But I have not yet seen a better arrangement proposed that deals with the practical realities of the cost of litigation and the fact that many of those who are harmed do not have their own resources with which to pursue recovery.
I think you are slightly misinterpretating that section of the US Code.
Disclaimer: IANAL, but I am a law student.
Recollecting from my undergrad anti-trust course, that section is there to avoid "predatory pricing." The concept of predatory pricing is that you are 1) selling items below cost 2) for the purpose of destroying competition 3) so you can raise prices later and recoup your losses (and then some).
That's not what's happening here. Here the grandparent poster is (perhaps) advocating price discrimination, which is selling at different prices to different groups, with all of those prices being above cost. (This is advantageous over a single profit-maximizing price, as you are losing sales from consumers who value the good above cost but below the single price.) University students would be one of those "different groups" that would receive lower prices.
Price discrimination is usually hard to pull off, because there is consumer backlash if individuals know that different prices are being charged. So to ease that backlash, and to ensure that only the people who really need the discount to make a purchase (that is still profitable to the producer), oftentimes producers will require identification of being in a group. Under the "modern taxonomy" mentioned in the Wikipedia article, this is "direct segmentation."
Perhaps the two best known examples of direct segmentation are student discounts and senior discounts. Those groups are known to, in the aggregate, have lower income than the general population. They are also easily distinguishable due to requiring a student ID or for the seniors, a driver's license.
In conclusion, what the grandparent poster appears to be advocating does not necessarily run afoul of the Clayton Act.
You are partially incorrect. There is minimal due process, but that due process is lacking significantly. Specifically, your rights may be determined by a "properly authorized" military tribunal, with relaxed rules of evidence.
The issue of rights of enemy combatants was litigated in Hamdi v. Rumsfeld. You can find my discussion of that case, based upon my law school lecture, at this location.
What does this mean? It means that South Korea is obligated to recognize foreign copyrights, and stripping that protection for (arguably valid) nationalist reasons would almost certainly be in violation of international law. I haven't had a chance to fully and formally study the documents in question, but I would be shocked if there would be no recourse by the WTO.
- Neil Wehneman
P.S. Berne is a major impediment to full and free reform of copyright on a national level, as it mandates signatory countries to grant at least a copyright term of life of the author plus fifty years.
This is the key. From the copyright holder's perspective (which I disagree with vehemently), that First Sale has not occurred yet, and before it is fully consumated, you have contractually agreed to give up your First Sale rights via the EULA.
My sig used to be "IANAL. Yet." But then I changed it to plug my podcast. I figured the phrase "my legal education", along with the domain name, would tip off that I'm a law student.
I explicitly type up the disclaimers in case I change my sig later.
As has been discussed elsewhere in this thread, Section 117 of the Copyright Act handles your scenario. I do not know what legal cases spurred enactment of 117, and my quick research is not giving me a good answer. Ask me again in a year or two after I've had some structured classes on the topic and I should have an answer for you.
Sorry for not having an answer:(. Feel free to get in touch with me if you want to know about getting into law school, or you can listen to my podcasts to get a feel for the material taught.
There are standards that govern what action can be construed as acceptance. Opening the envelope could not be objectively construed as manifesting acceptance, whereas running the software could (and sometimes has) been objectively construed as manifesting acceptance.
The lameness filter won't let me paste my notes in from that episode. Email me (see my profile) and I'll send you my notes (I don't think the bullet points do it justice).
- Neil Wehneman
I agree with you that your description is how the law should be. As far as the rights holder is concerned however, a right to use is allowed under copyright so long as you have a valid "default" license. However, the rights holder is refusing to sell that to you! Instead, they are selling you a restricted license based upon the EULA.
The fundamental issue is that most people view the money changing hands in the stores as finalizing the contract, but some courts have followed ProCD and not viewed that as offer and acceptance. Instead they view the EULA as offer and your using / not returning the software as acceptance.
We only covered ProCD tangentially in my actual class. I read it and analyzed it on my own. However, I fully intend to return to the general subject of EULAs in independent research and writing during my second and third years.
As to your first point, Judge Easterbrook (who wrote ProCD) viewed the fact that terms are presented after money changes hands as irrelevant. After all, we do that in the insurance industry and for airline tickets. I view those industries as distinguishable from software as they are highly regulated and service based. You are also correct that the right of return is often illusory, and that should cut against enforcing EULAs. Unfortunately Easterbrook didn't think that way.
To your first set of points, I agree with you completely and believe that reality cuts strongly in favor of not enforcing EULAs. Unfortunately the court in ProCD and some others cases did not see it that way.
As to your child clicking through for you, as I mentioned elsewhere in this thread, the copyright holder's most likely legal argument is that your child had agency and was able to bind you. I believe in that situation the fact that the child is a minor is irrelevant.
I am not aware of any caselaw that deals with this specific question, however.
You know the drill: IANAL, but I am a law student.
As to your million dollar example the EULA would almost certainly state that modification is not allowed, and by modifying the EULA you are actually making a new offer. Since the copyright holder has never agreed to that offer (by conduct or otherwise) you would be in violation of copyright as you never accepted the holder's only offer of license.
As to you switching the buttons, you would not be acting in good faith, would not have accepted the license, and would be breaking copyright.
As to your niece, it could be argued that she has some form of agency and as such would bind you to the contract.
Just some quick thoughts, and I'd like to reiterate that I believe that EULAs should not be enforced by courts for several reasons I have articulated by reference elsewhere in this thread.
You know the drill: IANAL, but I am a law student.
I agree that enforcement of EULAs are a bad idea legally. However, I'm going to play devil's advocate here.
If you had a valid "default" license to the copyrighted work, then Section 117 of the Copyright Act would apply. That valid "default" license would come with the implied contract that accompanied the sale of the software. For example, I buy a CD without additional terms, and I can do whatever the Copyright Act says I can do with that CD.
However, when a copyright holder attaches terms to the sale (through the EULA that is referenced and made known before the sale) then they are not selling a regular "default" license with the rights of Section 117 (and the rest of the Copyright Act for that matter). Instead they are selling a stripped down license that includes whatever rights they choose to offer you in the EULA. By not returning the software, you are accepting that offer through specific action (ie not returning it).
Again, this is not the perspective I believe the law should take (for a number of policy reasons articulated in my ProCD analysis). It is, however, the perspective some courts have taken.
Slashdot Mirror
With all due respect, I disagree strongly with your comment.
You said...
and what I say in class is my intellectual property
Repeat after me: copyright is not an absolute right.
Go ahead, repeat it: copyright is not an absolute right.
There is something called Fair Use. I should know, as I rely upon it when creating my podcast, [shameless plug] Life of a Law Student. In LoaLS I build upon my notes from the lectures I took part in at law school to create audio episodes explaining the cases and the law. I then make these episodes available, for free, to anyone who wants to listen and/or download. They are licensed as CC-Attribution and GNU FDL to enable others to build upon them freely.
Out of respect, I informed my profs and the administration what I was planning on doing before I started. Most thought it was a great idea or at least would not stand in my way. Unfortunately, I had one of my professors tell me that he only gave permission for his students to take notes for their own personal use, and so he wouldn't allow me to do LoaLS off of his class. I politely told him I wasn't seeking his permission because my Use was a Fair one and thanked him for his time.
Fair Use has four articulated prongs (although there are potentially more factors to balance).
Let's consider a student setting up a tape recorder and simply recording your lectures. (We'll set aside any Honor Code violations that explicitly give you the right to ban taping; we'll only deal with your "intellectual property" right.)
In summary, a student would likely have a legal right to record your lectures under Fair Use because three of the four prongs (and both of the important ones) would cut in their favor. If you would like make your lectures available for sale or distribution that might change the analysis. But the key thing is to disabuse yourself of this notion that your "intellectual property" is an absolute. Fair Use is explicitly codified in the Copyright Act because it is recognized that oftentimes the incu
Disclaimer: I believe Google is in the right here, but am just trying to explain what the judge ruled.
What you are confusing here are direct infringement (the making of the thumbnails) and vicarious / contributory infringement (which is where other sites do direct infringement and Google simply links to them). The judge ruled that the claims against Google for contributory and vicarious infringement were largely without merit, and denied an injunction. However, the claim that Google directly infringed by making the thumbnail had some merit to it, enough to get an injunction.
Perfect 10 is still able to sue the sites that are directly infringing by putting up full-size copies. In fact, I believe they are suing those sites. But as a preliminary matter Google's making of the thumbnail was determined to be an infringement as well.
- Neil Wehneman
On topic, Google can't possibly be held responsible for the actions of these sites
The preliminary injunction related to Google directly infringing by making the thumbnail. The judge felt the Fair Use analysis was close but ultimately tipped in Perfect 10's favor. This was largely because P10 had started selling the thumbnails for viewing on cell phones, and so Google's thumbnails were serving as a market substitute in that respect.
The vicarious and contributory liability theories ("the actions of these [other] sites") were found to be largely without merit.
- Neil Wehneman
Actually, you, me, and everyone else on this planet has what are termed Fair Use Rights
Only if you define "everyone else on the planet" as "United States citizens." Britian, Canada, Australia and some other countries have what is termed Fair Dealing. It is a related, but ultimately different, doctrine from Fair Use. I haven't studied it enough to comment on it beyond it generally gives less protection to society at large than Fair Use does.
Other countries may or may not have a Fair Use or Fair Dealing aspect to their copyright law. I haven't yet formally studied international copyright, but hope to in my last two years of law school.
- Neil Wehneman
I explain the facts of each case, operating under the assumption that listeners have not been able to read the case before hand. (Not everyone has Lexis or West, after all.) Since I'm not capturing raw audio, the socratic method isn't too much of an impediment. I do ask some questions and then answer them, but it's not in a conscious attempt to emulate the socratic method.
A lot of my listeners are incoming law students. They're not trying to use my episodes as substitutes for lecture, but rather as a means of getting exposure to the material before they start class. I've also talked to some current students who use the audio as a means of review / additional exposure while they exercise or drive to school.
You are correct that copyright doesn't attach until fixation, but my instructors almost certainly have outlined their lectures in hand-written notes or electronic files. Therefore my copyright questions revolve around potential infringement of those outlines.
One of the first things that I do is I try to focus on the uncopyrightable case law or arguments that underlie the discussion. I try to avoid discussing detailed or elaborate hypotheticals that the instructors toss out, as these would be protectable creative expression.
As to the four prongs of Fair Use, here's a quick and dirty analysis.
1) transformation and commercial / noncommercial
Since my instructors have never captured in audio their lectures, the copyright interest in question is in the written notes. I am transforming those notes into audio, which adds value and cuts in favor of Fair Use. Additionally, my aim is noncommercial and educational.
2) nature of copyrighted work (fiction or non-fiction)
The law and policy arguments are non-fiction, so this prong cuts in my favor. Additionally, as I mentioned above I try to avoid creative examples.
3) amount and substantiality in proportion to whole work
As I am creating new expression from unprotectable content / ideas, the amount of the original outlines that resurface in my audio is minimal. Hence, another prong cuts in my favor.
4) effect of the use upon the market
Life of a Law Student cannot confer JDs, so I am obviously not serving as a substitute for my professor's services at Cincinnati's law school. If anything, I am stimulating demand as people become more interested in law from listening.
- Neil Wehneman
This is a shameless plug, but it's on-topic.
I've been recreating my law school lectures at the University of Cincinnati (where I am a first-year student focusing on copyright and technology law). Instead of recording the raw lecture audio, and dealing with the copyright and privacy concerns, I've been taking detailed notes, adding my own analysis, and capturing new creative expression. (Yes there are still some copyright issues, but my lawyer and I are in agreement that what I am doing does fall under Fair Use.) This new creative expression is then placed under CC-Attribution and the GNU FDL so others can do new and innovative things with it.
I recorded roughly one 15-20 minute episode per lecture, with about 40 lectures in each of my four substantive classes.
My episodes are available for manual download and in podcast format through the iTunes Music Store (search for "Life of a Law Student"). This semester I have recruited some additional students to come on board. This way we can expand to other law schools and to undergraduate law / political science courses.
Here is the site, and I am still looking for students to help. Additionally, if you have technology skills (this is Slashdot after all), I need volunteers as we revamp our back-end software and deal with an influx of new material.
Contact me if you are interested in being a part of this.
- Neil Wehneman
P.S. For those who are wondering if my "re-lectures" are credible, I scored a 3.77 GPA last semester. Although I don't get my class rank for a few more days, I've been told by the administration that this should land me in the top 10% of the class.
Speaking of Harvey Danger, they released their most recent CD for free (through both BitTorrent and http).
http://harveydanger.com/downloads/
It's a pretty good album, and I recommend it.
- Neil Wehneman
You know the drill: IANAL, but I am a law student. Also, I view EULAs to be legal abominations that should not be enforced by state or federal courts for a number of policy reasons.
reselling Windows is a legal right regardless of the contents of the EULA
No. Reselling Windows is explicitly a legal right regardless of the contents of the EULA in those jurisdictions that have ruled so. A federal district court decision is binding only in that district. A district may be anywhere from a fourth to a whole of a state. California and Texas both have four districts, so based solely on your referenced decisions this behavior is explicilty allowed, as a matter of law, only in those parts of those states.
And even then, it's not a given. I'd have to read the opinions (don't have time now), but if the judges actually relied on federal law (copyright right of first sale) as opposed to sitting in diversity and applying state contract law (which EULAs tend to fall under), then it would be binding. If the courts relied on state contract law, then the decision isn't even binding on those state courts that fall within the district. It does, however, remain persuasive ("persuasive" being a term of art.) Also, sister districts within a state tend to look at each other as very persuasive.
As a quick refresher, federal district court decisions relying on federal law are binding on state and federal courts in those same districts. Federal circuit courts relying on federal law are binding on state and federal courts in those same circuits (which cover multiple states). Federal supreme court decisions relying on federal law are binding on state and federal courts throughout the nation. If any federal court sits in diversity and relies on state law, then the decision is only persuasive, and is less persuasive outside of the federal court's jurisdiction.
- Neil Wehneman
You wrote: Insurance company knows that no open source developer has the money to sue
And that is why the American legal system has a contingency fee option. Yes, it is maligned in the press and by much of popular opinion. But yes, I am glad we have it.
Instead of requiring "the little guy" (in this case an open source developer) to have the cash himself to hire a legal team and pursue recourse in the courts, he can present his case to a firm that will represent him for a percentage of the recovery. This keeps the doors of the courthouse open to him, even though all litigation (contingency or not) is very expensive.
A common objection to a contingency arrangement is that the percentage for the lawyer (generally 20-40% I believe) is very high, perhaps even predatory. The response to that is that the recovery figure pays for the instant plaintiff's costs in addition to the costs of plaintiffs that the firm represents but who ultimately do not recover. After all, there is no such thing as a 100% certain case.
Remember, under a contingency agreement the firm eats the cost of litigation when unsuccessful. This is part of the reason why the "frivolous lawsuit epidemic" is over-exaggerated: a lawyer / firm is not going to take a case that they know is frivolous and that they will almost certainly lose. Lawyers may be blood-suckers, but they are blood-suckers with at least 7 years of advanced education. They are (generally) not stupid.
Do I think a contingency arrangement is perfect? No, of course not. But I have not yet seen a better arrangement proposed that deals with the practical realities of the cost of litigation and the fact that many of those who are harmed do not have their own resources with which to pursue recovery.
- Neil Wehneman
I think you are slightly misinterpretating that section of the US Code.
Disclaimer: IANAL, but I am a law student.
Recollecting from my undergrad anti-trust course, that section is there to avoid "predatory pricing." The concept of predatory pricing is that you are 1) selling items below cost 2) for the purpose of destroying competition 3) so you can raise prices later and recoup your losses (and then some).
That's not what's happening here. Here the grandparent poster is (perhaps) advocating price discrimination, which is selling at different prices to different groups, with all of those prices being above cost. (This is advantageous over a single profit-maximizing price, as you are losing sales from consumers who value the good above cost but below the single price.) University students would be one of those "different groups" that would receive lower prices.
Price discrimination is usually hard to pull off, because there is consumer backlash if individuals know that different prices are being charged. So to ease that backlash, and to ensure that only the people who really need the discount to make a purchase (that is still profitable to the producer), oftentimes producers will require identification of being in a group. Under the "modern taxonomy" mentioned in the Wikipedia article, this is "direct segmentation."
Perhaps the two best known examples of direct segmentation are student discounts and senior discounts. Those groups are known to, in the aggregate, have lower income than the general population. They are also easily distinguishable due to requiring a student ID or for the seniors, a driver's license.
In conclusion, what the grandparent poster appears to be advocating does not necessarily run afoul of the Clayton Act.
- Neil Wehneman
You are partially incorrect. There is minimal due process, but that due process is lacking significantly. Specifically, your rights may be determined by a "properly authorized" military tribunal, with relaxed rules of evidence.
The issue of rights of enemy combatants was litigated in Hamdi v. Rumsfeld . You can find my discussion of that case, based upon my law school lecture, at this location.
- Neil Wehneman
Want more rulings like this?
Donate to the EFF They wrote briefs for these cases.
Remember: the rights you save may be your own.
- Neil Wehneman
P.S. More information is at the EFF coverage of the cases.
Korea declares all Microsoft IP, Software and Copywrites to be in the Korean Public Domain.
Diclaimer: IANAL, but I am a law student.
As much as that (semi-humorous) thought would warm my heart, South Korea is a member of the World Trade Organization, which requires signing the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPs"), which incorporates the Berne Convention by reference.
What does this mean? It means that South Korea is obligated to recognize foreign copyrights, and stripping that protection for (arguably valid) nationalist reasons would almost certainly be in violation of international law. I haven't had a chance to fully and formally study the documents in question, but I would be shocked if there would be no recourse by the WTO.
- Neil Wehneman
P.S. Berne is a major impediment to full and free reform of copyright on a national level, as it mandates signatory countries to grant at least a copyright term of life of the author plus fifty years.
A quick Google gives the following translation from Latin...
"In times of war the law falls silent."
- Neil Wehneman
This is the key. From the copyright holder's perspective (which I disagree with vehemently), that First Sale has not occurred yet, and before it is fully consumated, you have contractually agreed to give up your First Sale rights via the EULA.
- Neil Wehneman
My sig used to be "IANAL. Yet." But then I changed it to plug my podcast. I figured the phrase "my legal education", along with the domain name, would tip off that I'm a law student.
I explicitly type up the disclaimers in case I change my sig later.
- Neil Wehneman
As has been discussed elsewhere in this thread, Section 117 of the Copyright Act handles your scenario. I do not know what legal cases spurred enactment of 117, and my quick research is not giving me a good answer. Ask me again in a year or two after I've had some structured classes on the topic and I should have an answer for you.
:(. Feel free to get in touch with me if you want to know about getting into law school, or you can listen to my podcasts to get a feel for the material taught.
Sorry for not having an answer
- Neil Wehneman
That's an interesting hypothetical that I do not have the answer to. I'll try to remember to ask my instructor in office hours.
- Neil Wehneman
There are standards that govern what action can be construed as acceptance. Opening the envelope could not be objectively construed as manifesting acceptance, whereas running the software could (and sometimes has) been objectively construed as manifesting acceptance.
- Neil Wehneman
The lameness filter won't let me paste my notes in from that episode. Email me (see my profile) and I'll send you my notes (I don't think the bullet points do it justice). - Neil Wehneman
I agree with you that your description is how the law should be. As far as the rights holder is concerned however, a right to use is allowed under copyright so long as you have a valid "default" license. However, the rights holder is refusing to sell that to you! Instead, they are selling you a restricted license based upon the EULA.
The fundamental issue is that most people view the money changing hands in the stores as finalizing the contract, but some courts have followed ProCD and not viewed that as offer and acceptance. Instead they view the EULA as offer and your using / not returning the software as acceptance.
- Neil Wehneman
We only covered ProCD tangentially in my actual class. I read it and analyzed it on my own. However, I fully intend to return to the general subject of EULAs in independent research and writing during my second and third years.
As to your first point, Judge Easterbrook (who wrote ProCD) viewed the fact that terms are presented after money changes hands as irrelevant. After all, we do that in the insurance industry and for airline tickets. I view those industries as distinguishable from software as they are highly regulated and service based. You are also correct that the right of return is often illusory, and that should cut against enforcing EULAs. Unfortunately Easterbrook didn't think that way.
- Neil Wehneman
To your first set of points, I agree with you completely and believe that reality cuts strongly in favor of not enforcing EULAs. Unfortunately the court in ProCD and some others cases did not see it that way.
As to your child clicking through for you, as I mentioned elsewhere in this thread, the copyright holder's most likely legal argument is that your child had agency and was able to bind you. I believe in that situation the fact that the child is a minor is irrelevant.
I am not aware of any caselaw that deals with this specific question, however.
- Neil Wehneman
You know the drill: IANAL, but I am a law student.
As to your million dollar example the EULA would almost certainly state that modification is not allowed, and by modifying the EULA you are actually making a new offer. Since the copyright holder has never agreed to that offer (by conduct or otherwise) you would be in violation of copyright as you never accepted the holder's only offer of license.
As to you switching the buttons, you would not be acting in good faith, would not have accepted the license, and would be breaking copyright.
As to your niece, it could be argued that she has some form of agency and as such would bind you to the contract.
Just some quick thoughts, and I'd like to reiterate that I believe that EULAs should not be enforced by courts for several reasons I have articulated by reference elsewhere in this thread.
- Neil Wehneman
You know the drill: IANAL, but I am a law student.
I agree that enforcement of EULAs are a bad idea legally. However, I'm going to play devil's advocate here.
If you had a valid "default" license to the copyrighted work, then Section 117 of the Copyright Act would apply. That valid "default" license would come with the implied contract that accompanied the sale of the software. For example, I buy a CD without additional terms, and I can do whatever the Copyright Act says I can do with that CD.
However, when a copyright holder attaches terms to the sale (through the EULA that is referenced and made known before the sale) then they are not selling a regular "default" license with the rights of Section 117 (and the rest of the Copyright Act for that matter). Instead they are selling a stripped down license that includes whatever rights they choose to offer you in the EULA. By not returning the software, you are accepting that offer through specific action (ie not returning it).
Again, this is not the perspective I believe the law should take (for a number of policy reasons articulated in my ProCD analysis). It is, however, the perspective some courts have taken.
- Neil Wehneman