> The burden on the government, before it upholds a content based ban on speech is >called the "strict scrutiny" standard.
In theory, in fact practically nonthing survives "strict scrutiny", so the question is what do the justices want. If they cite strict scrutiny then they want the DMCA dead, but that is a big if.
Will there be five justices against a law by which congress helps big business screw consumers? I'd say it is a pretty close call.
I'm all for the campaign, but the authors conveniently forgot someone in the 'oppononts' category : the US government.
the US is the largest exporter of IP, including software, mass media and medicine. While as consumers we are fleeced, as Americans consumers (those of us who are) we partake (to our benefit) in fleecing the rest of the world. Read Judge Kaplan on DeCSS and see how much this is a decisive concern.
NGO's should work with third world countries such as South Africa and China who are willing to challenge the US, in order to help butress, defend and explain the morality of their refusal to submit to US mandated international IP rules.
Not surprisingly, a whole lot of posting is about what legal rights we have or don't in our ideas and works. lots of slashdoters are preparing hard for their upcoming turn as justices on the supreme court bench. Legal interpretation, which deals with figuring out the necessaity of the present, has unfortunately a numbing effect on a higher intellectual task, inventing the possible in the future. The trend is clearly towards the commodification of knowledge. producing new information becomes more expensives ( try sequencing the Genome at home) rather than cheaper. Distribution becomes cheaper for high volume, inviting economies of scale. can we do something about it? maybe we can start by thinking harder. Do we need copyright protection? Should we hold the right to restrict access to our own work? is it to our benefit? We have a visceral sense that we ought to have that right, and there is also the economic concern that we need to pay people to spend their effort producing knowledge.
Do copyright benefit producers? maybe, but the answear is not so easy because in the commoditized economy of knowledge knowledge producers are themselves a commodity. in the pharmaceutical lab, the university, the recording studio, knowledge laborers produce knowledge goods that are then owned and sold by the the owners of the real capital. How many people know the name of Goofy's and Micky creators and how many know the name of Michael Eisner?
What happened if we did copyright away. I don't know, by I am not sure at all that the producers of knowledge will suffer. It might be that being unable to sell a durable good, their vanishing but inalienable momentary performance will become literally priceless. Would you pay less to see a good dilbert cartoon if everybody could sell dilbert cartoons? or will you just be able to get better cartoons for your money? It would be a different economy, e.g. people will be hard pressed with finding way to capitalize on their intellectual performance in the short term before one has the chance of copying it. But there are good reasons to believe that we all be better off. for a start, the use of information will increase and so the knowledge economy will accelerate.
But nobody will come up with innovative ideas? Let's see, Joyce wouldn't have written short stories if he didn't own copyright because he couldn't make a buck on them. Grisham's fat royalties will be hurt, he will earn less, though he will still be able to make a living as a writer. What is wrong with that? We want plumbers to make a living, but we are not concerned that plumbers cannot become multimillioners. So we don't pass laws that give plumbers legal monopolies. As long as writers, inventors and artists can make a living we don't owe them more. What about technology? Compuserve would not have bothered to develop the effective gif format if they couldn't patent it? Why, I thought you develop a compression algorithm because you want to compress things, not because you want to sell things--they would have developed it anyway.
The common good is often expensive. So we pay to get it. We want, for example, to lure inventors away for secrecy. that is a good justification for paying them to publish their ideas. But present day patent rights pay far beyond what is necessary ( meaning simply, inventors would have published inventions for a fraction of it). Perhaps, in the marketist push of the time ( e-bay , priceline) someone can come out with a scheme to let markets in monopolistic protection determine how much protection an invention gets from the legal system? e-patent.org anyone ???
perhaps a system where patents are financial instruments ( kind of bonds), that enjoy governmental dividend in proportion to how much they are cited by future patents, but which must cite ( and pay for each citation) all previous patents within a time frame. ( Consider this statement prior art )
I want to suggest a possible course of action. I don't believe that Ms can protect it's copyright while keeping it secret. At least, it should require some more action. Basically, Microsoft must offer some prove that it owns the copyright. Slashdot should ask for proof, and it should not accept as proof a license protected document because slashdot should not be forced to enter a contract for the sole reason of being able to verify Microsoft copyright allegations.
Many posters say it is obvious that the post of the document is infringing. This is not so, they are issues of the percentage quoted etc, that can only be done by comparing the copy to the original. And noone can do it because the original is not public. Microsoft can of course ask a judge to issue an injunction based on sealed evidence. Let it do it.
As another suggestion, I believe a letter describinc this issue should be filed with the court dealing with the anti-trust case.
what is there to believe? the economics of liability rules are pretty easy to fathom, faith is not required. we know when liability is most useful, and the situation of software, where customers cannot easily ascertain risk nor do much to reduce it, makes a very good case for imposing negligence or even strict liability.
>in an environment where the license is written in >stone and backed up with the force of law without > appeal or mercy,
this is were we are now, and the result: crappy software and locked in customers.
Multiply the damage caused by 'ILOVEYOU' by the likelihood that it will happen to the average IT manager ( assuming that you have any reasonable tool to estimate that likelihood ) and compare it to the total cost of moving the whole network to the product of an obscure start-up that happens to give a better licence ( and don't forget to factor in the risk of being fired), and you'll understand why software houses can give IT managers the finger over liability.
So why won't a big software house offer liability? This is an area for reaserch but my guess is that such a product will have to be more expensive to cover the insurance and that a.) market leaders have no incentive to do it, b) also runners rightly feel that given the strong network effect of software and the difficulty of customers to evaluate risks, raising their prices would be a disaster.
A good liability rule (e.g. a due care requirement measured according to standards of software engineering) can correct this situation with minimum social costs, the only loosers will be the contract law fanatics.
The issue here is a trend to protect the software industry beyond reason, why this is so is a good question.
The judge used the prevalence of shrinkwrap contracts as evidence of their acceptance, and even had the audacity to suggest that this 'fact' is so clear that it can be decided summarily. He chose to ignored that the plaintiff's and all his agent's behavior clearly suggested that they considered the license irrelevant. Can you imagine an employee signing a meaningful contract for his employer without informing the latter?
According to the judges' logic, if grocery store owners starts sending letters to customers saying that by opening the milk cartoons customers agree to pay the store's annual insurance, than, this contract becomes enforceable over time simply because customers treat is as a joke and do not protest.
The crux however is that the judge insists on treating a mass marketed license to which one party comes as a matter of inevitable practice without legal counsel and with almost negligeable bargaining power using the template of a contract between two parties armed with legal counsel and involved in heated negotiation of terms: this is legal pulp fiction.
The court could have used quite a lot of precedents that set limits to what makers of such standardised and non negotiable contracts can put in their contracts. Why do software manufacturer deserve better treatment? because they are sexier and push the NASDAQ?
because bugs are an essential ingredient in software I would probably agree that liability can be limited here. Forcing the buyer rather than the seller to buy insurance is good in this case because without it much software would not have been written, and free software above all.
However, this particular case should have seen the jury because the bug may have been known, and the notion that the seller and buyer contracted freely that the buyer will pay for the seller's negligence seems absurd. A jury should have decided whether the defendent exercised due care.
This case is bad news: it is another one in a string of cases that shows the software industry as the new darling of the courts. With this kind of judges the industry may want to spend less money on legal services...
part of the reason for American susceptability to corporate excess is the transformation of individualism itself.
American constitution and legal tradition was biased from its origins towards a certain ideal of the country gentleman landowner.
Later on it was adapted to include the model of the Westward bound entrepeneur ( "The American Dream. ")
What is common to both traditions is that they implied a settings of rough equality (for a short explanation: in a Western everyone own a gun and is physically able to shoot everybody. not that it ever worked like that , but it is a good illustration of the 'Hobbesian' situation, legal rules are very effective in a society of rough equality.)
Yet from the late 19th century economic growth meant industrualization and corporatization, and from early on the legal traditions designed to protect individuals were given new meanings to fit the needs of these new players. ( that is how corporations came to enjoy free speech and due process rights )
In the proccess, the unstated assumption of 'rough equality' was abandoned and later stigmatized as foreign, communist, etc. What was suppressed and lost was the simple understanding that without rough equality individualism is an empty shell.
The ACLU has done some very good services to individual freedoms and deserves much credit. The claim that social responsability requires censorship is ridiculous in the way it was put forward, but is less ridiculous if you consider the practice rather than the theory of the marketplace of ideas: in practice social hegemony is achieved not by winning arguments but by defining what questions get aired. Liberalism's only answer to that reality is putting forward an ideal of public discourse that has never existed and can be argued cannot exists. This is a powerful ideal, but ideals that fail to account for their relation with reality carry a big liability. This brings me to linking the ACLU and the corporatism argument that started this whole debate. as I see it, the main problem with the ACLU is that it protects individual freedom while blindfolded by a very limiting liberal philosophy: one that sees the sole essence of freedom as the possesion of a legal right and the sole danger to it as the legal infringement by government. Is the government today the No 1 enemmy of free speech? Hardly, I agree with the lead post that the power of corporations to buy media, and their growing para-legal control of the life of their employees is far more dangerous. Yet the ACLU opposes political attempts to safeguard the public space (campaign finance reform ) on 1st amendment grounds. The ACLU protects the speech of (a few dozens) nazis but ignores the right of hundred thousands of accused citizens to protect themselves in a court of law. Why? Because the right of nazis is a pure legal question while the right to legal representation involves securing the funds that are necessary for effective counsel. Yet being jailed because one is poorer than OJ is a far more serious damage to personal liberty that being prevented by the police from insulting Jews. The problem with the ACLU is that it focuses too much of the energy of people concerned with liberty on cosmetics and avoid challenging the common pieties behind which actual liberty is mocked.
Slashdot Mirror
> The burden on the government, before it upholds a content based ban on speech is
>called the "strict scrutiny" standard.
In theory, in fact practically nonthing survives "strict scrutiny", so the question is what do the justices want. If they cite strict scrutiny then they want the DMCA dead, but that is a big if.
Will there be five justices against a law by which congress helps big business screw consumers? I'd say it is a pretty close call.
Slashdot must remove a posting that is illegal ( copyright violation ) if it has the technical ability to do so.
but
1) slashdot should decline to decide what constitutes copyright violation, let MS ask get an injunction.
2) slashdot should certainly refuse to agree to the licence for the sole purpose of determining whether a violation occured.
3) slashdot should officially inform the DOJ and the judge in the antitrust case.
I'm all for the campaign, but the authors conveniently forgot someone in the 'oppononts' category : the US government.
the US is the largest exporter of IP, including software, mass media and medicine. While as consumers we are fleeced, as Americans consumers (those of us who are) we partake (to our benefit) in fleecing the rest of the world. Read Judge Kaplan on DeCSS and see how much this is a decisive concern.
NGO's should work with third world countries such as South Africa and China who are willing to challenge the US, in order to help butress, defend and explain the morality of their refusal to submit to US mandated international IP rules.
Not surprisingly, a whole lot of posting is about what legal rights we have or don't in our ideas and works. lots of slashdoters are preparing hard for their upcoming turn as justices on the supreme court bench.
Legal interpretation, which deals with figuring out the necessaity of the present, has unfortunately a numbing effect on a higher intellectual task, inventing the possible in the future.
The trend is clearly towards the commodification of knowledge. producing new information becomes more expensives ( try sequencing the Genome at home) rather than cheaper. Distribution becomes cheaper for high volume, inviting economies of scale. can we do something about it? maybe we can start by thinking harder.
Do we need copyright protection? Should we hold the right to restrict access to our own work? is it to our benefit? We have a visceral sense that we ought to have that right, and there is also the economic concern that we need to pay people to spend their effort producing knowledge.
Do copyright benefit producers? maybe, but the answear is not so easy because in the commoditized economy of knowledge knowledge producers are themselves a commodity. in the pharmaceutical lab, the university, the recording studio, knowledge laborers produce knowledge goods that are then owned and sold by the the owners of the real capital. How many people know the name of Goofy's and Micky creators and how many know the name of Michael Eisner?
What happened if we did copyright away. I don't know, by I am not sure at all that the producers of knowledge will suffer. It might be that being unable to sell a durable good, their vanishing but inalienable momentary performance will become literally priceless. Would you pay less to see a good dilbert cartoon if everybody could sell dilbert cartoons? or will you just be able to get better cartoons for your money?
It would be a different economy, e.g. people will be hard pressed with finding way to capitalize on their intellectual performance in the short term before one has the chance of copying it. But there are good reasons to believe that we all be better off. for a start, the use of information will increase and so the knowledge economy will accelerate.
But nobody will come up with innovative ideas?
Let's see, Joyce wouldn't have written short stories if he didn't own copyright because he couldn't make a buck on them. Grisham's fat royalties will be hurt, he will earn less, though he will still be able to make a living as a writer. What is wrong with that? We want plumbers to make a living, but we are not concerned that plumbers cannot become multimillioners. So we don't pass laws that give plumbers legal monopolies. As long as writers, inventors and artists can make a living we don't owe them more.
What about technology? Compuserve would not have bothered to develop the effective gif format if they couldn't patent it? Why, I thought you develop a compression algorithm because you want to compress things, not because you want to sell things--they would have developed it anyway.
The common good is often expensive. So we pay to get it. We want, for example, to lure inventors away for secrecy. that is a good justification for paying them to publish their ideas. But present day patent rights pay far beyond what is necessary ( meaning simply, inventors would have published inventions for a fraction of it). Perhaps, in the marketist push of the time ( e-bay , priceline) someone can come out with a scheme to let markets in monopolistic protection determine how much protection an invention gets from the legal system? e-patent.org anyone ???
perhaps a system where patents are financial instruments ( kind of bonds), that enjoy governmental dividend in proportion to how much they are cited by future patents, but which must cite ( and pay for each citation) all previous patents within a time frame.
( Consider this statement prior art )
I want to suggest a possible course of action.
I don't believe that Ms can protect it's copyright while keeping it secret. At least, it should require some more action.
Basically, Microsoft must offer some prove that it owns the copyright. Slashdot should ask for proof, and it should not accept as proof a license protected document because slashdot should not be forced to enter a contract for the sole reason of being able to verify Microsoft copyright allegations.
Many posters say it is obvious that the post of the document is infringing. This is not so, they are issues of the percentage quoted etc, that can only be done by comparing the copy to the original. And noone can do it because the original is not public. Microsoft can of course ask a judge to issue an injunction based on sealed evidence. Let it do it.
As another suggestion, I believe a letter describinc this issue should be filed with the court dealing with the anti-trust case.
>I don't believe in product liability.
what is there to believe? the economics of liability rules are pretty easy to fathom, faith is not required. we know when liability is most useful, and the situation of software, where customers cannot easily ascertain risk nor do much to reduce it, makes a very good case for imposing negligence or even strict liability.
>in an environment where the license is written in
>stone and backed up with the force of law without
> appeal or mercy,
this is were we are now, and the result: crappy software and locked in customers.
Multiply the damage caused by 'ILOVEYOU' by the likelihood that it will happen to the average IT manager ( assuming that you have any reasonable tool to estimate that likelihood ) and compare it to the total cost of moving the whole network to the product of an obscure start-up that happens to give a better licence ( and don't forget to factor in the risk of being fired), and you'll understand why software houses can give IT managers the finger over liability.
So why won't a big software house offer liability?
This is an area for reaserch but my guess is that such a product will have to be more expensive to cover the insurance and that a.) market leaders have no incentive to do it, b) also runners rightly feel that given the strong network effect of software and the difficulty of customers to evaluate risks, raising their prices would be a disaster.
A good liability rule (e.g. a due care requirement measured according to standards of software engineering) can correct this situation with minimum social costs, the only loosers will be the contract law fanatics.
The issue here is a trend to protect the software industry beyond reason, why this is so is a good question.
The judge used the prevalence of shrinkwrap contracts as evidence of their acceptance, and even had the audacity to suggest that this 'fact' is so clear that it can be decided summarily. He chose to ignored that the plaintiff's and all his agent's behavior clearly suggested that they considered the license irrelevant. Can you imagine an employee signing a meaningful contract for his employer without informing the latter?
According to the judges' logic, if grocery store owners starts sending letters to customers saying that by opening the milk cartoons customers agree to pay the store's annual insurance, than, this contract becomes enforceable over time simply because customers treat is as a joke and do not protest.
The crux however is that the judge insists on treating a mass marketed license to which one party comes as a matter of inevitable practice without legal counsel and with almost negligeable bargaining power using the template of a contract between two parties armed with legal counsel and involved in heated negotiation of terms: this is legal pulp fiction.
The court could have used quite a lot of precedents that set limits to what makers of such standardised and non negotiable contracts can put in their contracts. Why do software manufacturer deserve better treatment? because they are sexier and push the NASDAQ?
because bugs are an essential ingredient in software I would probably agree that liability can be limited here. Forcing the buyer rather than the seller to buy insurance is good in this case because without it much software would not have been written, and free software above all.
However, this particular case should have seen the jury because the bug may have been known, and the notion that the seller and buyer contracted freely that the buyer will pay for the seller's negligence seems absurd. A jury should have decided whether the defendent exercised due care.
This case is bad news: it is another one in a string of cases that shows the software industry as the new darling of the courts. With this kind of judges the industry may want to spend less
money on legal services...
This is not a rebuttal but an adage.
part of the reason for American susceptability to corporate excess is the transformation of individualism itself.
American constitution and legal tradition was biased from its origins towards a certain ideal of the country gentleman landowner.
Later on it was adapted to include the model of the Westward bound entrepeneur ( "The American Dream. ")
What is common to both traditions is that they implied a settings of rough equality (for a short explanation: in a Western everyone own a gun and is physically able to shoot everybody. not that it ever worked like that , but it is a good illustration of the 'Hobbesian' situation, legal rules are very effective in a society of rough equality.)
Yet from the late 19th century economic growth meant industrualization and corporatization, and from early on the legal traditions designed to protect individuals were given new meanings to fit the needs of these new players. ( that is how corporations came to enjoy free speech and due process rights )
In the proccess, the unstated assumption of 'rough equality' was abandoned and later stigmatized as foreign, communist, etc. What was suppressed and lost was the simple understanding that without rough equality individualism is an empty shell.
The ACLU has done some very good services to individual freedoms and deserves much credit. The claim that social responsability requires censorship is ridiculous in the way it was put forward, but is less ridiculous if you consider the practice rather than the theory of the marketplace of ideas: in practice social hegemony is achieved not by winning arguments but by defining what questions get aired. Liberalism's only answer to that reality is putting forward an ideal of public discourse that has never existed and can be argued cannot exists. This is a powerful ideal, but ideals that fail to account for their relation with reality carry a big liability. This brings me to linking the ACLU and the corporatism argument that started this whole debate. as I see it, the main problem with the ACLU is that it protects individual freedom while blindfolded by a very limiting liberal philosophy: one that sees the sole essence of freedom as the possesion of a legal right and the sole danger to it as the legal infringement by government. Is the government today the No 1 enemmy of free speech? Hardly, I agree with the lead post that the power of corporations to buy media, and their growing para-legal control of the life of their employees is far more dangerous. Yet the ACLU opposes political attempts to safeguard the public space (campaign finance reform ) on 1st amendment grounds. The ACLU protects the speech of (a few dozens) nazis but ignores the right of hundred thousands of accused citizens to protect themselves in a court of law. Why? Because the right of nazis is a pure legal question while the right to legal representation involves securing the funds that are necessary for effective counsel. Yet being jailed because one is poorer than OJ is a far more serious damage to personal liberty that being prevented by the police from insulting Jews. The problem with the ACLU is that it focuses too much of the energy of people concerned with liberty on cosmetics and avoid challenging the common pieties behind which actual liberty is mocked.