They are just going to hire PIs that ARE licensed in all 50 states (who are going to be VERY EXPENSIVE) and use that to inflate the damages they claim...
Before you do anything, hire an intellectual property lawyer to give you advice.
You can probably negotiate changes, but in this case, I would seriously think about just signing it, because they seem to have forgotten about copyrights which is the more important thing for software (and you did say you were in IT). Then again, they seem to be inept and a good lawyer would probably have a field day with them.
I always ask for an exemption for poetry and musical compositions when confronted with these things. It convinces management that the lawyer is a Bozo and helps a bit with negotiations of more important things (well, I am a published songwriter; so, I have a legit reason for asking, too). One other time I did that, the personnel people told me they had forwarded my request to the lawyer and I never heard another thing about it (I suspect the lawyer didn't want to go to a VP and get the waiver signed -- imagine that:-). I was leaving anyway; so, I never heard what happened... But one of my friends told them he object to the mandatory retirement at age 65 (we were in our 20's then) and they did the same thing with him. Except he worked there another 20 years and never signed the agreement!
So sometimes you can stall and they will just forget about it.
One salesman I buy from a lot told me they had a regular client who would buy 2-3 computers, use them for a month and then return them... On a regular basis. Turned out the guy was bidding on video projects, doing the work with the computers and then returning them when the project was done -- underbidding the guys who actually bought the computers they used. He actually had the gall to complain when he came in and they informed him there was a new special policy just for him: His own personal 20% restocking fee!
Actually, I was told that Carpal Tunnel is one specific kind of tendonitis and tendonitis is one kind of RSI.
I had tendonitis about 20 years ago from heavy terminal use combined with bad posture. It took a long time to get rid of it, but only because the physical therapist at the HMO didn't know how to deal with it. I still get situations where it starts to come on, once in a while, but if I go after it with cold/hot therapy and anti-inflamatories at the first sign of trouble, it gets stopped right away. Theraputic massage has helped, too.
The main point is, deal with it immediately and get help learning how to fix it. Tendonitis involves a positive feedback loop (rubbing causes swelling, swelling causes more rubbing). It also can cause permanent damage if you ignore the signs that something needs to be corrected -- this is not the time to prove you are tough.
It's RSI. Carpel tunnel is a specific kind of RSI (and a widely abused term). A doctor or physical therapist can tell you if it's carpel tunnel or not, but it probably isn't.
Susceptability to RSI's varies, but bad posture combined with excessive use and no breaks is often the cause.
Go see a physical therapist who knows how to treat RSI. One who works with musicians is probably a good bet, because musicians get it worse (practicing the piano too much is a good way to get carpel tunnel). You want them to help you modify your work environment and or posture so it doesn't happen any more. They can also make it go away faster (as in a few days).
I personally knew at least one grammy nominated musician who DIED due to complications from diabetes that was never treated properly because he couldn't afford health insurance. And are many more that I don't know or didn't know personally.
How does that fit into your let the punishment fit the crime approach?
File sharing DOES take the life out of peoples mouths, dude.
Actually, I remember those demonstrations (presumably contrived to be as absolutely fast as possible) as taking twice a long as the timestamps on the files. This is suspicious in the least. But how the files got on the hard drive was moot anyway, because she was getting sued for distributing the files, not copying them. If anything, ripping the files and putting them in the share directory for KAZAA just makes her look more liable, because it means she had to make a conscious decision to share the files.
Ray, you keep harping about "proof", but you are looking at this like it's a criminal proceeding. It isn't (as much as the RIAA would like people to believe it is). Nobody will ever go to jail or get a criminal record for this. And even then, you are wrong.
There was distribution. At a minimum, the RIAA investigator must have downloaded the 24 files in question.
It was to "the public: The RIAA investigator didn't have to identify him/herself as a copyright owner; therefore, the copies were available to anyone who asked for them.
Giving something away is still a transfer of ownership.
All the RIAA has to do to win a lawsuit is show that is likely the files got distributed. They showed the files were available when there were millions of people logged onto the KAZAA network. Presumably they downloaded the 24 songs they sued over to prove they really were being shared. Claiming that nobody downloaded any songs off the computer in question is a little like claiming the pope is Jewish. Yes, there is some probability that no songs got downloaded, but how many zeroes do you think are after the decimal point in that fraction? You might as well tell the jury "I didn't do it because I was dancing on the head of a pin."
Now I do agree that the identity issue is much trickier, but not in this case...
And I would have been arguing for the minimum fine if I was on that jury. Mostly because it's pretty hard to estimate what the real damages are from someone posting a popular song file on KAZAA and I would tend to err on the less damaging side of things. Well, that and the coverage of the trial didn't mention anything about the RIAA saying anything about the the extent of the damage (caused by a single file sharer); so, I would assume they would have been happy with the minimum.
Trying to figure out the true impact is really difficult. The files get downloaded N times from a particular machine, they then get shared from each of those machines... It's a geometric progression; so, it's quite possible that a single file could easily end up being distributed to 100,000 other computers. I would say not likely, but I tend to underestimate things like schedule and resource requirements when I plan things...
This could be the RIAA laying a trap, couldn't it? If they lose the motion and win the case, might there be a way they could try to use this to inflate any legal fees they claim the losing party should pay? As in "the defendant wasted a huge amount of time on fishing expeditions; so, they should pay the RIAA's legal fees". Of course, there is always a chance the Copyright registrations are invalid, but given that they have already gotten burned by that in other trials, it seems pretty unlikely.
It would seem a lot safer to just contest things like the questionable qualifications of the investigators and whether there is any real proof of copyright infringement.
Asking the court to determine that "the defendant wasn't authorized to copy or distribute the recordings" is not the same as asking the court to rule that the defendent actually distributed. It would seem pretty obvious that the defendant had no legal authorization to distribute. Whether they were distributing or not is, of course a much dicier issue, but not what the RIAA was asking for a judgement on.
I'm not talking about infringing copyrights, I am talking about negligence. Things like unsecured Internet connections can be used to cause a lot more damage than just infringing copyrights...
The same law that says you can get sued if you put a swimming pool in your back yard without putting a fence around it and somebody falls in.
I suspect that the same principles would apply to companies that sell things like wireless access points with the security features turned off by default. That sure sounds like negligence to me. I'm actually surprised the RIAA hasn't latched on to that target, yet. They could probably make money on that lawsuit.
As many have pointed out, section 12 is clearly wrong and this guy should have known it. More to the point, it is so easy to state it correctly. The IP address can't be traced to an individual, but it can be traced to the person responsible for the Internet connection and that's all the RIAA actually needs. If a University won't (or can't) hand over the students names, the RIAA could sue the University instead (in fact, they do). It's certainly an open question how much one is responsible if one gets hacked, but I wouldn't want to be the guy who's unsecured wireless router got used by a terrorist for something...
Another untruth in there is probably in section 15. I have certainly seen claims of from people who got RIAA letters based on the file name, not the actual content.
Um from what I can see, Scilab has been providing open software since 1994. That would be 4 years before OSI even existed. So who is flouting who? Not to mention that the term "open" has been in use for decades to describe just about anything in the technical domain...
In my opinion, "open source" is a generic term, not anybody's trademark. The USPTO would seem to agree. If they expect to actually enforce anything, they better go for "OSI Certified", because "open source" by itself is just a generic term. Of course, they can still bully people with less money to go along with them just like the large corporations do. [Does anybody really think "windows" is not generic term?]
The Scilab example points out a huge problem with the OSI's personal definition of "open source", BTW. The point of Scilab is to provide a shared standardized environment for collaborating applications. If they allow anyone to modify the code willy-nilly, there is no standardized environment and the sharing can't happen. This is a case where the developers need to retain control for the good of the user community and the OSI model doesn't allow for that.
Mechanical royalties are for physical recordings (i.e., CDs). That's where the term mechanical came from. Sound exchange doesn't do those (Harry Fox does). Sound Exchange only does Internet broadcast royalties. You got the rest of it right, though. It is, of course, totally impractical for stations to do deals with individual artists -- Neither the artists nor the stations have enough time. It is almost certainly possible to set up an alternative clearance organization.
Sound Exchange tracks this stuff with a database; so, I don't think you are going to DOS them. At least not with artists. At one point in time, they were insisting on having every station submit a database record for each song played. If they really signed up every Internet radio station, that would DDoS them. I believe that the reporting requirements for small stations got changed shortly after we pointed that out.:-)
I should point out that SE does NOT allow artists to set thier own price. It wouldn't be hard for them to do that, but SE IS set up to squeeze small players out of the business and that's one of the subtle ways it does that.
Sound Exchange would like everyone to believe that they have a monopoly, but that's not what "compulsory license" means. "Compulsory license" means that every broadcaster has the right broadcast the material and pay the statutory rate through Sound Exchange. It means broadcasters cannot be refused access to any material they want as long as they are willing to pay the statutory rate. Broadcasters are perfectly free to make thier own deal with artists for royalty rates (and there are plenty of artists out there who would be willing to let them play material for free). At least that's essentially what Barney Frank claimed the last time we lobbied him about this and the law hasn't been changed.
The problem is that the Internet broadcasters would have to set up thier own clearance organization for this to be practical and they aren't will to go to the trouble as long as they can convince the Copyright office to give them low rates. In other words, they are just another groups of hucksters looking to get a free lunch from other people's work.
It is possible to set up an alternative clearance operation: Here is how it would work.
1. Artists would put a file on thier web site that listed each work they were willing to license (probably with ISBN number as an index). For each work, they would list a price, a time-to-live for the offer, a payment account (Paypal or whatever), credits, web site URL, MP3 file URL, etc. This will would be in a standard format (XML or whatever) that could be uploaded into a database. The file would have to contain a license grant for the material in some standard format that could be machine checked.
2. Internet broadcasters would create a collaborative database that would consolidate the individual artist information so the stations didn't have to do all the work themselves. It would update entries automatically when the TTL ran out. Each station would contribute URLs to new artists (and presumably artists would also register themselves). If they also had this database application collect and disburse royalties, they would have accurate net airplay data that sould be sold as charts to pay for operation of the database.
The above scheme is infinitely better than the 1960's data processing scheme used by Sound Exchange, BTW. It's possible that even the major labels would use it on a promotional basis.
Another reason the guy may have been canned was for agreeing to do such lame ad campaign in the first place. For starters, the show has been around for a long time. The reason very few people watch it probably has more to do with how bad it is (my TiVo recorded it by accident once) than any sort of awareness.
Also, the ads themselves were pretty bad.
1. I had seen the show once and I did not recognize the character (the LEDs were arranged in straight lines, not curved like the character, and LEDs aren't exactly a great artistic medium).
2. If the signs managed to attract attention, there was no way for the curious person to figure out what it was or where to find it (the show). In contrast, the underground marketeers that hand out free cigarette samples don't hand out samples with no brands on them!
You could put up a sound absorbant fence made of 6-8" fiberglass insulation. It'll work better if there is something solid on your side of it, but it's most important that the other side of it not block the fiberglass. You could improve the looks of it by putting grill cloth on the fiberglass side, but you don't want to. The uglier it looks, the better.
At this point, you have something to negotiate over -- You will take down the fence if he takes down the noise maker.
I'm not so sure the brown note is a myth. I remember sitting on a washing machine when I was a kid and having to get up very quickly... I can easily believe it requires a direct mechnical connection with the vibrating surface and more energy than you can get from a speaker.
A speaker cable of directing those frequencies accurately would be larger than most yards and very expensive...
I would go for a beat frequency of more like 10KHz -- much more annoying than 2KHz. I would go for something fairly wide dispersion and put it at the edge of the offender's yard, but it's still going to bleed back and really annoy everybody... Hook it up to a motion detector so it only came on when he was in his yard...
Slashdot Mirror
They are just going to hire PIs that ARE licensed in all 50 states (who are going to be VERY EXPENSIVE) and use that to inflate the damages they claim...
So how are they supposed to identify the "right people" without filing Ex Parte lawsuits?
Before you do anything, hire an intellectual property lawyer to give you advice.
:-). I was leaving anyway; so, I never heard what happened... But one of my friends told them he object to the mandatory retirement at age 65 (we were in our 20's then) and they did the same thing with him. Except he worked there another 20 years and never signed the agreement!
You can probably negotiate changes, but in this case, I would seriously think about just signing it, because they seem to have forgotten about copyrights which is the more important thing for software (and you did say you were in IT). Then again, they seem to be inept and a good lawyer would probably have a field day with them.
I always ask for an exemption for poetry and musical compositions when confronted with these things. It convinces management that the lawyer is a Bozo and helps a bit with negotiations of more important things (well, I am a published songwriter; so, I have a legit reason for asking, too). One other time I did that, the personnel people told me they had forwarded my request to the lawyer and I never heard another thing about it (I suspect the lawyer didn't want to go to a VP and get the waiver signed -- imagine that
So sometimes you can stall and they will just forget about it.
One salesman I buy from a lot told me they had a regular client who would buy 2-3 computers, use them for a month and then return them... On a regular basis. Turned out the guy was bidding on video projects, doing the work with the computers and then returning them when the project was done -- underbidding the guys who actually bought the computers they used. He actually had the gall to complain when he came in and they informed him there was a new special policy just for him: His own personal 20% restocking fee!
Actually, I was told that Carpal Tunnel is one specific kind of tendonitis and tendonitis is one kind of RSI.
I had tendonitis about 20 years ago from heavy terminal use combined with bad posture. It took a long time to get rid of it, but only because the physical therapist at the HMO didn't know how to deal with it. I still get situations where it starts to come on, once in a while, but if I go after it with cold/hot therapy and anti-inflamatories at the first sign of trouble, it gets stopped right away. Theraputic massage has helped, too.
The main point is, deal with it immediately and get help learning how to fix it. Tendonitis involves a positive feedback loop (rubbing causes swelling, swelling causes more rubbing). It also can cause permanent damage if you ignore the signs that something needs to be corrected -- this is not the time to prove you are tough.
It's RSI. Carpel tunnel is a specific kind of RSI (and a widely abused term). A doctor or physical therapist can tell you if it's carpel tunnel or not, but it probably isn't.
Susceptability to RSI's varies, but bad posture combined with excessive use and no breaks is often the cause.
Go see a physical therapist who knows how to treat RSI. One who works with musicians is probably a good bet, because musicians get it worse (practicing the piano too much is a good way to get carpel tunnel). You want them to help you modify your work environment and or posture so it doesn't happen any more. They can also make it go away faster (as in a few days).
I personally knew at least one grammy nominated musician who DIED due to complications from diabetes that was never treated properly because he couldn't afford health insurance. And are many more that I don't know or didn't know personally.
How does that fit into your let the punishment fit the crime approach?
File sharing DOES take the life out of peoples mouths, dude.
Actually, I remember those demonstrations (presumably contrived to be as absolutely fast as possible) as taking twice a long as the timestamps on the files. This is suspicious in the least. But how the files got on the hard drive was moot anyway, because she was getting sued for distributing the files, not copying them. If anything, ripping the files and putting them in the share directory for KAZAA just makes her look more liable, because it means she had to make a conscious decision to share the files.
Ray, you keep harping about "proof", but you are looking at this like it's a criminal proceeding. It isn't (as much as the RIAA would like people to believe it is). Nobody will ever go to jail or get a criminal record for this. And even then, you are wrong.
There was distribution. At a minimum, the RIAA investigator must have downloaded the 24 files in question.
It was to "the public: The RIAA investigator didn't have to identify him/herself as a copyright owner; therefore, the copies were available to anyone who asked for them.
Giving something away is still a transfer of ownership.
All the RIAA has to do to win a lawsuit is show that is likely the files got distributed. They showed the files were available when there were millions of people logged onto the KAZAA network. Presumably they downloaded the 24 songs they sued over to prove they really were being shared. Claiming that nobody downloaded any songs off the computer in question is a little like claiming the pope is Jewish. Yes, there is some probability that no songs got downloaded, but how many zeroes do you think are after the decimal point in that fraction? You might as well tell the jury "I didn't do it because I was dancing on the head of a pin."
Now I do agree that the identity issue is much trickier, but not in this case...
And I would have been arguing for the minimum fine if I was on that jury. Mostly because it's pretty hard to estimate what the real damages are from someone posting a popular song file on KAZAA and I would tend to err on the less damaging side of things. Well, that and the coverage of the trial didn't mention anything about the RIAA saying anything about the the extent of the damage (caused by a single file sharer); so, I would assume they would have been happy with the minimum.
Trying to figure out the true impact is really difficult. The files get downloaded N times from a particular machine, they then get shared from each of those machines... It's a geometric progression; so, it's quite possible that a single file could easily end up being distributed to 100,000 other computers. I would say not likely, but I tend to underestimate things like schedule and resource requirements when I plan things...
This could be the RIAA laying a trap, couldn't it? If they lose the motion and win the case, might there be a way they could try to use this to inflate any legal fees they claim the losing party should pay? As in "the defendant wasted a huge amount of time on fishing expeditions; so, they should pay the RIAA's legal fees". Of course, there is always a chance the Copyright registrations are invalid, but given that they have already gotten burned by that in other trials, it seems pretty unlikely.
It would seem a lot safer to just contest things like the questionable qualifications of the investigators and whether there is any real proof of copyright infringement.
Asking the court to determine that "the defendant wasn't authorized to copy or distribute the recordings" is not the same as asking the court to rule that the defendent actually distributed. It would seem pretty obvious that the defendant had no legal authorization to distribute. Whether they were distributing or not is, of course a much dicier issue, but not what the RIAA was asking for a judgement on.
I wonder how they plan on keeping the cameras from being stolen? :-)
I'm not talking about infringing copyrights, I am talking about negligence. Things like unsecured Internet connections can be used to cause a lot more damage than just infringing copyrights...
This sounds like a Trojan horse to me. That would make the felony level illegal... Like the Sony root kit.
The same law that says you can get sued if you put a swimming pool in your back yard without putting a fence around it and somebody falls in.
I suspect that the same principles would apply to companies that sell things like wireless access points with the security features turned off by default. That sure sounds like negligence to me. I'm actually surprised the RIAA hasn't latched on to that target, yet. They could probably make money on that lawsuit.
As many have pointed out, section 12 is clearly wrong and this guy should have known it. More to the point, it is so easy to state it correctly. The IP address can't be traced to an individual, but it can be traced to the person responsible for the Internet connection and that's all the RIAA actually needs. If a University won't (or can't) hand over the students names, the RIAA could sue the University instead (in fact, they do). It's certainly an open question how much one is responsible if one gets hacked, but I wouldn't want to be the guy who's unsecured wireless router got used by a terrorist for something...
Another untruth in there is probably in section 15. I have certainly seen claims of from people who got RIAA letters based on the file name, not the actual content.
Um from what I can see, Scilab has been providing open software since 1994. That would be 4 years before OSI even existed. So who is flouting who? Not to mention that the term "open" has been in use for decades to describe just about anything in the technical domain...
In my opinion, "open source" is a generic term, not anybody's trademark. The USPTO would seem to agree. If they expect to actually enforce anything, they better go for "OSI Certified", because "open source" by itself is just a generic term. Of course, they can still bully people with less money to go along with them just like the large corporations do. [Does anybody really think "windows" is not generic term?]
The Scilab example points out a huge problem with the OSI's personal definition of "open source", BTW. The point of Scilab is to provide a shared standardized environment for collaborating applications. If they allow anyone to modify the code willy-nilly, there is no standardized environment and the sharing can't happen. This is a case where the developers need to retain control for the good of the user community and the OSI model doesn't allow for that.
The last time I looked at the Real ID Act, it looked like Mass was already doing everything that the act required....
Sounds like it's time to publish the addresses of all the Cultural Council Members so people all over the world can help "test" the censurship.
Mechanical royalties are for physical recordings (i.e., CDs). That's where the term mechanical came from. Sound exchange doesn't do those (Harry Fox does). Sound Exchange only does Internet broadcast royalties. You got the rest of it right, though. It is, of course, totally impractical for stations to do deals with individual artists -- Neither the artists nor the stations have enough time. It is almost certainly possible to set up an alternative clearance organization.
:-)
Sound Exchange tracks this stuff with a database; so, I don't think you are going to DOS them. At least not with artists. At one point in time, they were insisting on having every station submit a database record for each song played. If they really signed up every Internet radio station, that would DDoS them. I believe that the reporting requirements for small stations got changed shortly after we pointed that out.
I should point out that SE does NOT allow artists to set thier own price. It wouldn't be hard for them to do that, but SE IS set up to squeeze small players out of the business and that's one of the subtle ways it does that.
Sound Exchange would like everyone to believe that they have a monopoly, but that's not what "compulsory license" means. "Compulsory license" means that every broadcaster has the right broadcast the material and pay the statutory rate through Sound Exchange. It means broadcasters cannot be refused access to any material they want as long as they are willing to pay the statutory rate. Broadcasters are perfectly free to make thier own deal with artists for royalty rates (and there are plenty of artists out there who would be willing to let them play material for free). At least that's essentially what Barney Frank claimed the last time we lobbied him about this and the law hasn't been changed.
The problem is that the Internet broadcasters would have to set up thier own clearance organization for this to be practical and they aren't will to go to the trouble as long as they can convince the Copyright office to give them low rates. In other words, they are just another groups of hucksters looking to get a free lunch from other people's work.
It is possible to set up an alternative clearance operation: Here is how it would work.
1. Artists would put a file on thier web site that listed each work they were willing to license (probably with ISBN number as an index). For each work, they would list a price, a time-to-live for the offer, a payment account (Paypal or whatever), credits, web site URL, MP3 file URL, etc. This will would be in a standard format (XML or whatever) that could be uploaded into a database. The file would have to contain a license grant for the material in some standard format that could be machine checked.
2. Internet broadcasters would create a collaborative database that would consolidate the individual artist information so the stations didn't have to do all the work themselves. It would update entries automatically when the TTL ran out. Each station would contribute URLs to new artists (and presumably artists would also register themselves). If they also had this database application collect and disburse royalties, they would have accurate net airplay data that sould be sold as charts to pay for operation of the database.
The above scheme is infinitely better than the 1960's data processing scheme used by Sound Exchange, BTW. It's possible that even the major labels would use it on a promotional basis.
Another reason the guy may have been canned was for agreeing to do such lame ad campaign in the first place. For starters, the show has been around for a long time. The reason very few people watch it probably has more to do with how bad it is (my TiVo recorded it by accident once) than any sort of awareness.
Also, the ads themselves were pretty bad.
1. I had seen the show once and I did not recognize the character (the LEDs were arranged in straight lines, not curved like the character, and LEDs aren't exactly a great artistic medium).
2. If the signs managed to attract attention, there was no way for the curious person to figure out what it was or where to find it (the show). In contrast, the underground marketeers that hand out free cigarette samples don't hand out samples with no brands on them!
attn: BARTLY J. LOETHEN
Synergy Law Group, L.L.C.
30 South Wacker Drive, Suite 2200
Chicago, Illinois 60606
United States of America
You could put up a sound absorbant fence made of 6-8" fiberglass insulation. It'll work better if there is something solid on your side of it, but it's most important that the other side of it not block the fiberglass. You could improve the looks of it by putting grill cloth on the fiberglass side, but you don't want to. The uglier it looks, the better.
At this point, you have something to negotiate over -- You will take down the fence if he takes down the noise maker.
I'm not so sure the brown note is a myth. I remember sitting on a washing machine when I was a kid and having to get up very quickly... I can easily believe it requires a direct mechnical connection with the vibrating surface and more energy than you can get from a speaker.
A speaker cable of directing those frequencies accurately would be larger than most yards and very expensive...
I would go for a beat frequency of more like 10KHz -- much more annoying than 2KHz. I would go for something fairly wide dispersion and put it at the edge of the offender's yard, but it's still going to bleed back and really annoy everybody... Hook it up to a motion detector so it only came on when he was in his yard...