I have practiced law for many years in the US and issued probably thousands of subpeonas in civil cases. Let me tell you how it's done. I go down to the court house and pick up a package of subpeona forms from the clerk which are presigned by a judge. I sign the subeonas fill out the necessary info and have them served....
Well, I have no experience in this regard, so I cannot argue with you on this, but let me disagree a little on the principle. You know that in the legal system it's the actual law that counts; in other words, there may be quite a few judges that "trust" lawyers with their subpoenas, or only review them after they have been challenged, etc., but that doesn't mean that the U.S. (as well as state) Constitutions and related laws are irrelevant. On the contrary, when it all comes down to it, the only system that will be followed is what is written in the law.
Having said that, and regarding the SBC's challenge of DMCA's constitutionality (among other things), I cannot believe how the facts that you state can be applied to the case. If, for example, RIAA argues that judges don't look at subpoenas anyway, so we might as well get rid of this "judicial oversight" thingy and it won't make a difference, that will not help their case any, and will likely backfire. There are ways to change the Constitution and other laws, this is not one of them.
You are [I am assuming] right that, in practice, it may not make any difference in 90+% of the cases where subpoenas are issued whether they are reviewed by a judge or not, but that doesn't mean that in the rest of the cases (as well as in principle) everyone's rights should be ignored and violated. Just imagine if you apply that same logic to other rights as well - it would effectively make many of them irrelevant. For example, if you take all U.S. citizens and residents and what they express in their "speech" everyday, I am guessing that about 99.99999% of that speech will not be objectionable by government. So, it would make sense that in the 0.00001% of the cases that same government may censor such speech that it finds "controversial" - this would have little (if any) impact on everyone around the country, right? Right? Wrong!
After reading this story, I would switch to SBC if they covered my area...
What about you?
I've had SBC for awhile now, and, let me tell you, as far as local telephone service and DSL service, they are 2 different companies; at least it seems like it. They have virtually no competition for local phone service, they offer poor customer service, tech support, and, as a customer, you are the one begging them to get something done. They don't care in many cases, because they know you have nowhere else to go.
The Internet services arm, however, is a totally different story - they offer you special deals, special Yahoo! services/promotions, return your calls, pay attention to what you say, and actually try to keep your business. Not surprisingly, they do have competition in this market. And, look now, they are fighting against RIAA and DMCA! Is this a PR move? Of course, at least partially. Is it going to earn them more customers from their competitors like Comcast and others who basically bent over when they saw RIAA? Most likely. Does Constitution violate the DMCA? You bet.
Somehow, I'm more willing to believe that the whole protection of privacy thing is a PR hoax and that they are really worried about the extra operational overhead necessary to hand the RIAA the information it needs. I mean, figuring out who had which IP and when in an ISP as big as SBC probably isn't a trivial task.
You are underestimating the situation. When ISPs are forced to reveal their customers' personal information to a 3rd party for the purpose of suing them without judge's authorization this is going to generate a lot of customer backlash; and, in the end, people getting caught up in this are more likely to place blame on their ISPs rather than RIAA.
Take an analogy: I believe you owe me $100; I don't know you personally, but I know your name and I noticed Bank of America check card in your wallet. So I go directly your bank and demand that they give me your personal information, and, while they are at it, to freeze all your accounts too. I get your personal information and sue you. You are going to be mad as hell at your bank and definitely think it's unfair that banks are legally required to do and believe what I told them.
Also, keep in mind that SBC does not exactly have a clean image in California (where they filed their suit), and additional backlash will only hurt them. On top of that, competition for broadband is not as easy as local telephone service market. While FCC allowed telcos to cut out access to competition to any new lines they lay, competition is still tough in the existing markets, as well as from cable broadband providers.
All in all, I think it's a little bit more than just saving on operational expenses. Hell, I think it would have been cheaper for SBC to hire few more people to process subpoenas than to file this lawsuit and keep pressing on. Keep that in mind also. Now, maybe I don't have all the politics behind SBC's actions but surely, it's not only to save on few additional expenses.
Is it my fault if someone hacks into my computer and uses it?
Apparently, judging from the editorial. It's like someone rear-ending you and you are responsible because you didn't move out of the way soon enough. Also read the following quote:
The fines would be used by ISPs to support the significant efforts required to continually block identified attack traffic.
What a nice way to encourage ISPs to scan their own [users'] network for vulnerabilities and inject them with viruses to increase their revenues.
You are absolutely right. This guy assumes that every CD/DVD burner and Internet connection is used for "stealing" music. Nonsense! I don't "steal" any music, and I don't want to have anything to do with RIAA's or some others' licensing (read ripoff) schemes that they come up with. There are a lot of artists who let me sample their work for free and I'll buy their stuff if I end up liking it.
It's obvious that RIAA and so-called "musicians" and "artists" want a contract with the public and Congress that will somehow get them subsidies and guaranteed cash from taxing (or "licensing" to) everyone on earth. Hell, why not? They can simply sit back and not even have to market their product or even compete. Simply hire bunch of lawyers to bitch about "piracy" and to pitch to Congress (and other governments) to enact more laws that tax everyone - that's all there is to it.
Think about it. Why is this so specific to music? Why not books? software? movies? patents? Hell, why can't I simply write couple of VBScripts and get compensated from taxes paid by everyone? Would I have to sign my soul over to BSA for that? What a bunch of crap! The proposal from the submission is full of holes like MP3 players submitting IDs and data to governments (guess what - I can have my own MP3 player that won't do any of that), to licensing CD/DVD burners (instead of owning them), to some weird definition of "artists" that kind of hint to "musicians" but are so vague they could include anyone.
On top of that, why take free market principles and put them in the government's hands? Because RIAA is a non-competitive cartel, refusing to put out a product that people demand? Because RIAA and "artists" are exempt from market conditions, and their century-old business model has to be saved? Because we have more than enough privacy than to be tracked now by governments, cartels, and ISPs working together against all people?
I'm not saying they shouldn't fight for their copyrights, but their copyrights don't make them or give them god-like powers over everyone.
In related news, attorney general John Ashcroft is expected to announce tonight that justice department has successfully identified and are in the process of bringing to justice yet another terrorist organization. Online community known as "slash/dot" has been widely recognized as an organization with differing views from current White House administration. Most recently members of this organization have been responsible for hacking and bringing down the U.S./Canada Power Outage Task Force website containing the report on timeline of events during recent blackout in Northeastern United States.
"This investigation and compromized information is crucial to the security of our power supply and and our country," - said justice department spokesperson - "we are currently working with the FBI and various local law enforcemnet officials to identify and bring to justice responsible members of the underground organization." Attorney general is expected to give out more details in his address.
The "slash/dot" organization has been identified in the past as a source of criticism towards America's entertainment companies, the U.S. PATRIOT Act, Digital Millenium Copyright Act, and other laws of the land. This un-American behavior coupled with anti-White House sentiment and now, recent terrorist actions holding the joint task force website hostage has landed "slash/dot" on government's terrorist organizations list.
"That's fine," - said one Florida resident who wished to remain anonymous - "everybody has the right to free speech but if you go against the government and are accused of terrorism, then, as they say - you do the crime, you do the time, right?"
Attorney general John Ashcroft is expected to speak during primetime tonight to reach wider audience. Some skeptics argue that this address and timing is related to justice department's push to pass PATRIOT ACT II that will give law enforcement even more tools to combat terrorism. But justice department has hinted in the past that anyone expressing skepticism on the battle against terrorism may be classified as a terrorist as well.
On top of that, they didn't present any data on how these statistics were obtained. There are several factors that go into it, such as:
1. What is the concentration of virtual servers on a Linux server vs. a Windows server? i.e. if Linux servers host more virtual servers on average, then cracking a single Linux box would expose more websites. Are they comparing virtual or physical servers?
2. What was the success rate of an attack on each platform? i.e. compare total number of [reported verifiable] attempts vs. number of successful compromises on each platform.
3. What is the average concentration of different services/software running on a single box for each platform? i.e. if box A runs 3 services, and box B runs 20, then, everything else being equal, box B is likely more vulnerable.
4. What is the distribution on sizes of websites/businesses that were compromized for each platform, and distribution of damages inflicted?
5. What constitutes a "successful and verifiable digital attack"? What types of compromises are included and what types are not?
There are likely more, just not off the top of my head.
Also, the article does not provide any insight into the following statement:
Microsoft Windows servers belonging to governments, however, were the most attacked (51.4 per cent) followed by Linux (14.3 per cent) in August.
Why such a discrepancy? How is the population of gov't server OSes different from commercial server OSes?
Well, I just don't see it that way. In a hypothetical scenario, if an Outlook worm distributed a KaZaA-like sharing application as its payload and installed and activated it on every Windows PC it touched, then I cannot imagine how affected users would be liable for activities of that worm.
However, if a person goes to a KaZaA's website, makes a conscious effort to download and install a sharing application, then most of the responsibility of sharing/distributing any content from his hard drives that he doesn't have the rights to distribute will lie with that person. I've never used KaZaA myself, but I've seen it on others' PCs; there are configuration options and choices on what files and directories to share, what not to share, how to quit, etc.
I also don't see how "I didn't know [distributing copyrighted content was illegal / this button did that / I was computer illeterate / etc.]" arguments are going to fly. They either directly fly into the face of ignorance of law with respect to the copyrighted material, or illiteracy/inability to operate a computer program. Neither of these is a good excuse. If you are not aware of copyright law, does not mean you are expempt from it. If you don't know how to operate a computer program (not a worm or a virus) it does not excuse you from your regular responsibilities. For example, if you don't know how to ride a bike and, while attempting, scratch someone's car on the street, you are still responsible for the damage. Your inability to ride on a bike is not a good excuse in court and does not free you from the liability.
Also, keep in mind that these are civil lawsuits, and RIAA is claiming damages; whether you agree with it or not, current copyright law provides for such process and retributions, and, just like in the bike-riding case, the damage has already been done.
Yet another "also", remember that file sharing programs are not illegal tools in and of themselves, but there are both legal and illegal ways to use them. There is no reasonable way to expect the authors of such software to guarantee that everyone's use of the software will be legal, or even that any default configuration will be legal on every possible installation. It is up to the users of the software to make sure they are using it in a manner that does not violate applicable laws. Just like your local bike shop cannot be held responsible if you use your newly purchased bike and accidentally scratch someone else's car(s) even if he (bike shop owner) knows beforehand you cannot ride a bike.
Wow, I actually sound like pro-RIAA here, but I am not! I just don't believe this is the right way to fight back. I am against extension of copyrights, DMCA subpoena clause and other restrictions. The right way to fight back is public awareness, electing officials that represent people and not media or other industry cartels; we desperately need more competition in the entertainment industry (and other industries as well) but what we are getting more of is industry lock-up, higher barriers to entry, trade organizations (read cartels), taxation for cartels' benefit and revenue stream, unreasonable government subsidies, and laws written by corporate lawyers rather than people's representatives.
If you rip files to a directory that happens to be shared under a file sharing program, can you be charged with distributing them? You're not advertising them, someone has to come to you to find them...
[snip]
Another convincing argument the defence lawyers should use is that most filesharing programs don't close when you close their main window.
I am no lawyer either but I believe in most cases ignorance is not a viable defense. I.e. the person who actively engaged in installation of the sharing/distribution software like KaZaA, Morpheus, etc. is ultimately responsible for damages caused to copyright owners by distributing copyrighted content that that person does not have the right to distribute. Your argument would hold more water if, for example, this functionality came with Windows installs and was turned on by default, and required specific user action to disable it; but that's not the case.
If you don't know what you are doing, either find out what it is you are actually doing to make sure you are not violating others' rights or engaging in illegal behavior, ask for professional advice, or don't do it at all. File sharing software is not an illegal tool in itself, but it can be used to infringe on others' copyrights, including GPL for that matter. This would be a reasonable expectation for most P2P users; and, in most cases, and everything else being equal, simple ignorance will not save the day.
I think those of us who hate the RIAA, MPAA and other cartels should help the defence lawyers out. We should come up with enough justification why someone might be sharing files that the cartels can't prove that someone was knowingly infringing on their copyright.
Yes, but two wrongs don't make it right. Just because RIAA, MPAA et al. are engaging in illegal anti-competitive, price-fixing, you-name-it behavior does not mean that everyone else should either. If you do, then you know who will win that "war"; they control most media outlets and there is no way they are giving up on that power. You can't expect CNN or Fox News to be objective on many things, but especially on this issue.
The best way to combat their dominance is to increase public awareness that this restricted copyrighted material cannot be legally distributed in such manner; but, at the same time, the medium of Internet has brought us new possibility of entertainment and other content distribution not available before. As I mentioned, there are a lot of smaller bands producing all kinds of artistic content (ranging from very good to very bad) and willing to share it free! And once this medium becomes more reliable and proven in distributing such content there will be more and more of such artists. Just look at what mp3.com and Napster did for many otherwise very small and unknown bands. RIAA and MPAA chose not to take advantage of this medium, and chose to fight P2P (which is their right), but that doesn't mean the medium is dead.
When they are done with their lawsuits do you expect their revenues to skyrocket? Of course not! They will decline even more than before - that's my prediction. Not a lot of people are attracted to $15-$20 CDs anymore with 8 songs on each CD. Maybe, with the public awareness in the right direction this can be turned into something more positive which is fueling and increasing so much needed competition in the eintertainment industry.
So the EFF needs our donations to protect people whose intention is to steal?
Sorry, no way. People who amass collections of in excess of 1,000 mp3s (of songs they do not posses on CD) are by no stretch of the imagination "victims".
Nonsense! I don't share or download RIAA's, MPAA's or anyone else's copyrighted material that I don't have the right to distribute. But I DO share music files, video clips, software that I DO have the right to share! Yet I am in the same pool of people who are afraid that they may get a subpoena from RIAA just because one of my filenames matched their stupid queries (search/. for good examples of these incidents). Then, RIAA has something similar to a police power to go directly to my ISP, get all my contact information, even shut down my account, and all this without providing any proof of any violation to any judge! Then, I have to go into court to prove my innocence? If that's the case, then I am presumed to be guilty, until proven otherwise!
Donate to EFF to end this super-policing, above-the-law power granted to a private industry cartel that surely violates the Contitution.
You do the crime, you do the time.
You are under arrest for copyright infringement. You are presumed to be guilty until proven otherwise in a court of law. You have a right to remain silent, anything you say may be used against you...
This has already happened. Truth is, most people I know used to share everything. Now I can quite honestly say I don't know a single person who leaves sharing enabled. In fact, making sure Kazaa has sharing disabled has become as important as making sure there's a virus scanner when any of us has to fix a friend's/relative's computer.
I always tell others to share what they have rights to share legally. i.e. if you have ripped your CD collection to your PC, you probably don't have rights to distribute that content. However, you'd be amazed there are a lot of music (virtually any kind), movies, documentaries, etc. from independent artists, smaller studios that produce quality content (some good, some not so good) that are glad to have at least some of their content freely shared for gaining publicity, satisfaction, promotional, or similar purposes. Same can be said about software and other types of content. Just make sure that if it's not readily apparent that content is offered for distribution that you get an express permission from the author.
In fact, that's what I do myself. I do have some CDs that I have ripped to my HD for easier listening when I work but none of that content is shared; absolutely NONE! Because the way copyright law works right now that would be illegal.
What/. tends to forget is that the VAST majority of p2p users ARE downloading copyrighted songs. And if we got sued, the vast majority of us would lose even if the RIAA had the most incompetent lawyers on the planet (which I'm sure they don't...) It takes someone who really didn't break the law to challenge these suits. For the rest of us, it's simply not worth the risk, so we'll just pull our machines off line and wait for a more secure way to do things. I can certainly do without the music for a while...
This doesn't make sense. I think you are talking about sharing, not downloading. RIAA has no knowledge of what you download from a P2P network unless they share the content in question themselves. And, if they do, then that's going to significantly weaken their argument. It would be similar to me giving you one of my CDs for free and then accusing you of stealing that CD (to use RIAA's stealing analogy).
That being said, if you do download content from P2P network that you have reason to believe is illegally distributed, then you, the downloader can also be liable for contributory infringement along with the sharer. Again, do not download such content! IANAL, that's my understanding.
What I hope the RIAA actions accomplish is exactly this understanding. I hope one day to search and browse the P2P network for legally distributed content from musicians, bands, producers, programmers and other types of artists from all over the world without fear of some mega-corporation or cartel having above-the-law policing powers on every single network packet I send and receive. I believe this will eventually bring true competition in the currently oligopolistic, price-fixing, privacy intruding, anti-competitive entertainment industry, and that's a good thing (tm)!
The 10k fine was for just 1 incident.. something posted on a webpage. If they had sent 1000s of extortion letters, I suspect the fine would have been significantly higher.
What's the difference? Did the court ask how many times the violating webpage had been accessed since the injunction?
I was thinking they could make it even worse - what if it said "if you agree to these terms - do nothing, you will automatically be set up with all the greatest features of your laptop in... 3... 2... 1... " and at the end in a small print - "If you'd like more time to read this page, press right-ctrl + left-shft + left-alt + tab + delete for a 5-second increment".
It would make just as much sense as agreeing to an agreement without having read it; just that all this would happen automaticlally for you.
You are mistaken if you think that downloading is somehow more legal than uploading within the context of a P2P exchange, just as it is mistaken to characterize copying complete MP3 files as Fair Use.
IANAL (again), but I disagree. For example, you go to a local store and they are giving out "free sampler CDs". You pick one and take it with you. If the CD turns out to be illgally distributed, the worst, and very rarely, that you could be liable for is a contributory infringement; the best and usually - nothing at all.
Similarly, it is sharer's responsibility to make sure they are distributing the content they have rights to distribute. It is not downloaders' responsibility to make sure everything they download is legal. There is no legal or reasonable way that it could be enforced. Moreover, if you apply the same concept not to just songs and mp3s but to all other IPs, it gets more complicated. Am I, while browsing the web, required to make sure all content (images, flash animation, text, music, software, etc.) on any given website is licensed properly and does not infringe anyone's copyright? And do so before visiting any website? How about make sure they don't violate any web-related patents? Of course not!
In the above example (free sampler CDs), is it my responsibility to make sure that all songs on the CDs are properly licensed before grabbing one? If the CD contains contents from Warner Bros, Vivendi, BMG, would I be required to call each corporation and get an OK to grab the CD? Very unreasonable, and I don't see how that would be required by law. Similarly, if I download something off of P2P or anywhere from the Internet, I cannot be held responsible for taking extraordinary and unreasonable steps to make sure all content is "legal". In fact, it would make the user/downloader/customer's duty to be the judge and the jury of deciding whether all content they experience was legally obtained or not.
On top of all of the above, and as I stated in the grandparent post, it is the sharer that is making the alleged illegal copy and distributing the content. Copyright law, as far as I am aware, places more responsibility with copiers and distributors (the actual root of violation) than with users and consumers.
Now, having said all that, and as far as strictly P2P, if it can be argued and proven that a downloader had a reason to know and believe that the content he/she is about to download (without downloading it first) infringes on someone's copyright then the downloader could be proven to have been guilty of contributory infringement. i.e. downloading a file called "Madonna.mp3" may not qualify since this could possibly contain anything from Madonna's interview, comments, parody of her, etc. - to one of her complete songs. Also, with some songs/content, one could make an argument that a downloader had no knowledge of the infringement of copyright by sharer, e.g. as far as they knew, it could have been the copyright owner itself distributing (or allowing the distribution of) number of songs to promote their albums and related content (a la sampler CD). In fact, this may make a lot of difference in the future, if and when smaller bands and recording studios get more exposure through this way. There would be almost no way to reasonably tell whether any content was intentionally shared for promotion (or other) purposes, or whether it was illegally made available by the sharer.
Because of this, as far as I understand, legally (as well as practically but that's another issue), accusing downloaders would stand on more shaky grounds. Suing sharers, however, is a more clear-cut case. That's my understanding of the whole thing anyway.
The point is so simple, I'm suprised that it's at all contriversial. Anybody unfortunate enough to get hit with one of these lawsuits who plans on agruing (in court as opposed to on/.) that downloading MP3s is Fair Use better find a better argument.
I don't really see it as you do. Even RIAA doesn't argue what you say here. In fact, they have never argued that downloading is illegal. They have always said that sharing was. Calls from RIAA to users of kazaa and others have been to disable sharing. This makes sense since it is the sharer who actually allows others to get a copy of the content that they don't have a right to share, and it is the sharer who makes and sends copies of copyrighted content to others. In the worst case, downloader could be responsible for contributory infringement; in the best case - for nothing at all. But back to the previous argument below.
btw, it's also easy to shoot holes in arguments that there is no loss of potential market. For example, I have a CD, I never backed it up, and then I scratch it. If I then decide to download another copy, that's a clear loss of potential market.
First of all, "shoot holes" does not mean "prove". Since they, the accusing party, would have to prove that the CD in question was scratched beyond repair, or lost, there was no backup, and likelihood that the person would purchase the CD again. You cannot be automatically assumed to be guilty without the accusing party proving it first.
Second, this gets further into a different argument as to what is being purchased when you purchase a CD. Do you purchase that medium as a physical item (with content)? Or do you purchase a lease to use the content contained on that medium?
In the former case, you have a right to make a backup copy of the CD content in case the original CD is scratched, lost, etc. Also, you can make copies (for yourself) to listen on your MD player, portable player, PC, In that sense, loss of one medium does not prevent you from restoring your backup, or enjoying the content from other media. The right to make personal copies, as far as I am aware, is not illegal. And then this goes back to accuser proving what happened with the original CD to make you download another copy, which cannot be proven for most of songs and such downloads.
However, in many respects, RIAA (and other IP corps) would like to have you believe in the latter, since they would like to have god-like control on their leasing or licensing of their IP. However, even in this case, a loss, or a damage to a CD does not invalidate your purchased right/lease/license to use the content. In fact, in this case, it would be reasonable to ask, and even legally require, the content owner to provide a replacement medium containing the leased content at the cost of the medium (rather than the market price of the content). If you establish a CD medium as a way or a key to using the leased content, then loss of a key should not prevent you, the purchaser, to your paid rights to the content. For other examples, if you lease a house or a car, losing your keys does not invalidate your car or property lease and definitely does not force you to sign another lease to get your car or house back. In fact, you are even allowed to make new keys on your own without any permission or involvement of the owner; frequently, you are expected to do so.
In either case, it is not a "slam-dunk" case of - if you download an mp3 file, you are automatically infringing copyright. But again, I agree that such downloading would fall on subjective interpretation, and could be considered to be anywhere from contributory infringement to nothing illegal at all.
The 'Fair Use' stipulated in US Copyright law has nothing to do with making copies of music.
Fair Use is about the right to quote portions of one work within another, as a means of making commentary, criticism, or parody. See Standford's explanation or Title 17, Chapter 1, Section 107 of the Copyright law.
You might argue that it's 'reasonable' to download an MP3 file that corresponds to a track from a CD that you own, but it's simply not 'Fair Use'.
Direct quote from Title 17, Chapter 1, Section 107:
Sec. 107. - Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors
[emphasis mine]
IANAL, but it's clear to me that the list of actions - criticism, comment, news reporting, etc. that follow the phrase "such as" are being used as examples and is not an all-inclusive list at all. The actual criteria that are used to determine whether an action is covered under fair use are listed items 1-4. For example, if you are simply downloading songs that you already own on CDs (1) is not commercial use; (2-3) it's not a substiantial violation, even though whole song(s) are being copied; (4) the potential market or value of the song(s) are not being diminished or affected in any way since you already own songs and CDs in question, therefore, not likely at all to purchase them again. In this sense, downloading the songs that you already own on a CD could be considered fair use.
The Stanford review correctly points out, however, that the interpretation involves some subjectivity, and does not necessarily apply to all cases alike.
I think we should welcome this ruling - since it is perhaps one of the clearest examples of how the 1st Amendment is being corroded by laws which increasingly serve only to stifle innovation and prop up monopolies to the detriment of science and the useful arts.
Look at this quote from the ruling:
The mere fact that DVD CCA's trade secrets may have some link to a public issue does not create a legitimate public interest in their disclosure.... Disclosure of this highly technical information adds nothing to the public debate over the use of encryption software or the DVD industry's efforts to limit unauthorized copying of movies on DVD's. And the injunction does not hamper Bunner's ability to "discuss and debate" these issues as he has "in the past in both an educational, scientific, philosophical and political context." Bunner does not explain, and we do not see, how any speech addressing a matter of public concern is inextricably intertwined with and somehow necessitates disclosure of DVD CCA's secrets...
In other words, they are saying that, since this computer code looks like Greek (not even) to them, it's probably not important in the discussion and public debate. As they said, "adds nothing to the public debate". How can they say this? What do they know whether it adds to public debate or not? What is the definition of "public debate"? If you ask people who use this encryption method for research, documentation, studies, improvement of similar and better encryption methods, etc. then it does add to "public debate".
And what is that "government's interest in encouraging innovation and development" they keep referencing? Hell, here I was thinking it was public interest.
IANAL, but IIRC the law still tries to put the toothpaste back in the tube if the original disclosure was a breach of trade-secret law (such as a violation of an NDA or license agreement), no matter how widely that toothpaste has been spread around.
For this reason trade secret law is, in many ways, much more powerful (and restrictive to the general population) than copyright.
I did not yet read the ruling fully, but 2 problems I see are:
1. Trade secret law cannot trump free speech right granted by Constitution; It makes sense to use reasonable efforts to contain trade secret proliferation, but there's still parent poster's argument. IANAL either, but it is my understanding that trade secret law governs a contractual arrangement between private parties. Once a trade secret is put into public knowledge, then censoring the "secret" would constitute a violation of free speech rights of the people who were not part of the original trade agreement, and had no involvement in how the secret was obtained. How can a law that governs an arrangement between private parties trump a right given by the Constitution? It seems to me that the MPAA dispute should be with the party that violated the arrangement and did not take care of a trade secret, and the party that "stole" (knowingly improperly obtained) these secrets, and seek damages from them.
2. Court ruled that:
In this case, a Web site operator posted trade secrets owned by another on his Internet Web site despite knowing or having reason to believe that the secrets were acquired by improper means. The trial court found that the owner misappropriated these trade secrets...
How could someone have a knowledge of how these trade secrets were obtained, and whether they were obtained in violation of some agreement between private parties? Why are all people bound by some agreement that 2 companies have made between each other?
First off, I'm a Mac user but fairly experienced using Unix/Linux....... Do you really expect newbie users of Linux to understand "emerge -u world" by chance? If so, there is MUCH work to be done to Linux's software update model.
Surely, if you are an experienced Linux user, you realize that there is no such thing as "Linux's software update model" since Linux itself is just a kernel. Most popular user-friendly Linux distributions (Mandrake, RedHat, SuSE, etc.) do provide an easy interface to software patches and updates, which amounts to clicking an "Update" button, or an "Update" menu item. Obviously, some of the smaller, or "advanced" distributions may not.
My point was that Seibt was talking about large IT vendors supporting server OS in the arena of OS competition in the corporate server market... and the quote taken out of context from that interview. It seems we now both agree to this.
Now, I don't agree completely with Seibt's opinion, and, it's clear, neither do you. I believe other GNU/Linux distributions have a fair chance of grabbing a share of corporate server market, and getting reasonable support from large IT vendors. You bring a good example of Oracle. In the beginning Oracle only "supported" their software on SuSE, then RedHat (if I am not mistaken). But now, they are more distro-agnostic, and rightly so. If Yahoo can use FreeBSD, then it's only reasonable to think that some large corporation may predominantly use Debian on their servers, for example. Obviously, Seibt thinks otherwise (what does "pull a SCO" have to do with this, anyway?).
As far as distrowatch links, they seem to take the quote out of the context as well, just like the/. story submission. And then they go bragging about Mandrake, Gentoo, and other distributions including desktop installations, and browser statistics, supported by "no reliable" polls by their own admission. In fact the quote from the other ZDNet article that distrowatch references is as follows:
Q: But if they're getting rid of Unix, that would suggest there's room for more Linux distributions. It's all open source. It's all transparent. A: If you ask them, they will tell you they want to support two distributions.
The question, again, is about replacing Unix in corporate environment, not a Pentium II box in someone's parents' basement. In that sense, and in many others, none of these polls are accurate, make sense, or even relevant to Seibt's specific answer, and taking/. or any other polls to prove such a point is... well... I don't have a comment on that one.
The quotes you provide are all in response to different questions. They are out of context of the relevant question. The relevant question and answer interchange only touched upon server OSes in corporate environments.
In fact, and again, the OSes and related companies that Seibt mentioned when beginning that specific answer were Unix vendors HP, IBM AIX, Sun Solaris, SCO, who face competition from MS Windows. OK, So far he's talking about servers.
From that point, he goes to say that - the above companies, facing competition from MS, have to think about their strategies for the future because, in his view, industry has already decided that the only competitor to MS is Linux. OK, he's still talking about Unix vendors competing with MS in the server market and their strategy as far as Linux.
Now, when it comes to main competition against MS in this arena, there are only 2 companies/distros that are supported by large IT vendors [for the server market], and those are RedHat and SuSE. And, from that perspective, even Novell decided to bail out of OS competition. OK, he's still talking about servers.
Don't you see? He is discussing corporate server market, not desktop, not average Joe. This does not mean that the whole interview was about servers, but that the specific answer, and the quote that was taken our of context, definitely was.
Your quote is also out of relevant context since you fail to continue with the rest. Here is the relevant snippet:
It's my view that the industry has decided there is one main operating system competitor to Microsoft, and that is Linux. Linux means two companies: Red Hat and SuSE, and nobody else. There will be no third distribution that will be supported by the large IT vendors. And from that perspective, even Novell decided not to compete anymore on operating systems. They now migrate all of their applications to Linux. This is a two-horse race between Linux and Windows. [emphasis mine]
So, there! He's giving his opinion about distributions that will be supported by "large IT vendors". He is also talking about Novell bailing out of OS competition. This is a corporate environment.
What is even more out of context is/. story submission which quotes Seibt as: "Linux means two companies: RedHat and SuSE, and nobody else." Obviously, Linux does not mean two companies, it doesn't mean any company, Linux is just a kernel.
If you want more, read the question thas was asked as well, and read it carefully, not just copy and paste. The question was:
But is it Unix or Windows that's being used less because of Linux? And will there be a shift in the future toward Linux replacing one or the other? For instance, as Linux on the desktop becomes more prevalent, will it be Windows that's more at risk?
The first question is: What OS is Linux displacing more right now: Unix or Windows? The second question is: As Linux gets more popular on the desktop, what OS will it displace more in the future?
In response to these questions he mentions HP, IBM AIX, Sun Solaris, and SCO, out of which his vendor analysis comes out. It is obvious he is talking about corporate server environments supported by "larte IT vendors"!
... freedom of speech guarantee no punitive actions be taken against the speaker, be it in the private or public sector.
I don't know where you are reading this or getting this from; and I don't even know what "punitive"means in this case. Punitive is a term most often used in reference with punishment that is issued by government. Nobody in the private sector can legally punish you in that sense. They can terminate your employment, contract, and other deals that you have made with another private party, but confusing that with actual punishment ordained by government is mixing 2 different things in one. Read on for more.
People are not being fired for telling a companies customers "hey, my employer sucks!" (although they can in numerous cases... that is what we have whistle blower laws for), they are being fired (or worse) for saying things like "with what my government is doing, I am ashamed to be American." That is unacceptable, and your complacency in dismissing this as OK is part of the reason our freedoms have become so eroded, and show every sign of eroding further.
It seems like you are complaining about employment laws here. This has nothing to do with free speech. Employment law is such in the U.S. that it allows what is called "employment at will". This means that both parties involved - employer and employee - can terminate the employment at any time and without any reason. For example, if you are an employee at John's Dry Cleaner shop "at will", John can terminate your employment any time he wants, without any reason, i.e. it doesn't matter what the reason is, it could be that he has a headache that day. The fair part of this deal is that so can you, as an employee, terminate your employment at any time, without any reason, e.g. because John has been saying things you don't agree with, and you don't like him after all. There go John's free speech rights, right? Of course not! This is your private life and private contracts you have made with other private parties. Constitution does not deal with the details of your private contracts and choices you make. That would be insane.
It is obvious in reading the 14th amendment that that oversight was intended to be corrected...our basic rights are intended to be upheld by everyone, be it federal, state, local government, private industry, or our neighbors.
I would say it's less than obvious, much less, since you seem to have an incorrect perception of concpets such as "punishment" and "rights". 14th amendment, like all others deal with the government, federal and state. It does not deal with private industry, your neighbors, or your relatives:
Section 1. No state can violate rights of U.S. citizens - life, liberty, property without due process, and equal protection. Section 2. How representatives should be apportioned from states Section 3. Conditions under which you cannot hold a public office and other governmental functions if you had taken oath to support Constitution and then rebelled against it, unless Congress votes otherwise Section 4. About public debt held by the United States Section 5. Congress has powers to enforce laws based on the above
I think you are substituting notions of "state" and "government" with "my employer" and "my neighbor" in the Constitution. That is wrong. Constitution does not intend to protect you or to limit you in the choices that you and others make in your private life this way. In fact, it's quite the opposite. Constitution grants you freedom to make choices on your own, without undue government oversight. What you do with your freedom, whether you are an employee or an employer is totally up to you.
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Well, I have no experience in this regard, so I cannot argue with you on this, but let me disagree a little on the principle. You know that in the legal system it's the actual law that counts; in other words, there may be quite a few judges that "trust" lawyers with their subpoenas, or only review them after they have been challenged, etc., but that doesn't mean that the U.S. (as well as state) Constitutions and related laws are irrelevant. On the contrary, when it all comes down to it, the only system that will be followed is what is written in the law.
Having said that, and regarding the SBC's challenge of DMCA's constitutionality (among other things), I cannot believe how the facts that you state can be applied to the case. If, for example, RIAA argues that judges don't look at subpoenas anyway, so we might as well get rid of this "judicial oversight" thingy and it won't make a difference, that will not help their case any, and will likely backfire. There are ways to change the Constitution and other laws, this is not one of them.
You are [I am assuming] right that, in practice, it may not make any difference in 90+% of the cases where subpoenas are issued whether they are reviewed by a judge or not, but that doesn't mean that in the rest of the cases (as well as in principle) everyone's rights should be ignored and violated. Just imagine if you apply that same logic to other rights as well - it would effectively make many of them irrelevant. For example, if you take all U.S. citizens and residents and what they express in their "speech" everyday, I am guessing that about 99.99999% of that speech will not be objectionable by government. So, it would make sense that in the 0.00001% of the cases that same government may censor such speech that it finds "controversial" - this would have little (if any) impact on everyone around the country, right? Right? Wrong!
I've had SBC for awhile now, and, let me tell you, as far as local telephone service and DSL service, they are 2 different companies; at least it seems like it. They have virtually no competition for local phone service, they offer poor customer service, tech support, and, as a customer, you are the one begging them to get something done. They don't care in many cases, because they know you have nowhere else to go.
The Internet services arm, however, is a totally different story - they offer you special deals, special Yahoo! services/promotions, return your calls, pay attention to what you say, and actually try to keep your business. Not surprisingly, they do have competition in this market. And, look now, they are fighting against RIAA and DMCA! Is this a PR move? Of course, at least partially. Is it going to earn them more customers from their competitors like Comcast and others who basically bent over when they saw RIAA? Most likely. Does Constitution violate the DMCA? You bet.
You are underestimating the situation. When ISPs are forced to reveal their customers' personal information to a 3rd party for the purpose of suing them without judge's authorization this is going to generate a lot of customer backlash; and, in the end, people getting caught up in this are more likely to place blame on their ISPs rather than RIAA.
Take an analogy: I believe you owe me $100; I don't know you personally, but I know your name and I noticed Bank of America check card in your wallet. So I go directly your bank and demand that they give me your personal information, and, while they are at it, to freeze all your accounts too. I get your personal information and sue you. You are going to be mad as hell at your bank and definitely think it's unfair that banks are legally required to do and believe what I told them.
Also, keep in mind that SBC does not exactly have a clean image in California (where they filed their suit), and additional backlash will only hurt them. On top of that, competition for broadband is not as easy as local telephone service market. While FCC allowed telcos to cut out access to competition to any new lines they lay, competition is still tough in the existing markets, as well as from cable broadband providers.
All in all, I think it's a little bit more than just saving on operational expenses. Hell, I think it would have been cheaper for SBC to hire few more people to process subpoenas than to file this lawsuit and keep pressing on. Keep that in mind also. Now, maybe I don't have all the politics behind SBC's actions but surely, it's not only to save on few additional expenses.
Apparently, judging from the editorial. It's like someone rear-ending you and you are responsible because you didn't move out of the way soon enough. Also read the following quote:
The fines would be used by ISPs to support the significant efforts required to continually block identified attack traffic.
What a nice way to encourage ISPs to scan their own [users'] network for vulnerabilities and inject them with viruses to increase their revenues.
You are absolutely right. This guy assumes that every CD/DVD burner and Internet connection is used for "stealing" music. Nonsense! I don't "steal" any music, and I don't want to have anything to do with RIAA's or some others' licensing (read ripoff) schemes that they come up with. There are a lot of artists who let me sample their work for free and I'll buy their stuff if I end up liking it.
It's obvious that RIAA and so-called "musicians" and "artists" want a contract with the public and Congress that will somehow get them subsidies and guaranteed cash from taxing (or "licensing" to) everyone on earth. Hell, why not? They can simply sit back and not even have to market their product or even compete. Simply hire bunch of lawyers to bitch about "piracy" and to pitch to Congress (and other governments) to enact more laws that tax everyone - that's all there is to it.
Think about it. Why is this so specific to music? Why not books? software? movies? patents? Hell, why can't I simply write couple of VBScripts and get compensated from taxes paid by everyone? Would I have to sign my soul over to BSA for that? What a bunch of crap! The proposal from the submission is full of holes like MP3 players submitting IDs and data to governments (guess what - I can have my own MP3 player that won't do any of that), to licensing CD/DVD burners (instead of owning them), to some weird definition of "artists" that kind of hint to "musicians" but are so vague they could include anyone.
On top of that, why take free market principles and put them in the government's hands? Because RIAA is a non-competitive cartel, refusing to put out a product that people demand? Because RIAA and "artists" are exempt from market conditions, and their century-old business model has to be saved? Because we have more than enough privacy than to be tracked now by governments, cartels, and ISPs working together against all people?
I'm not saying they shouldn't fight for their copyrights, but their copyrights don't make them or give them god-like powers over everyone.
In related news, attorney general John Ashcroft is expected to announce tonight that justice department has successfully identified and are in the process of bringing to justice yet another terrorist organization. Online community known as "slash/dot" has been widely recognized as an organization with differing views from current White House administration. Most recently members of this organization have been responsible for hacking and bringing down the U.S./Canada Power Outage Task Force website containing the report on timeline of events during recent blackout in Northeastern United States.
"This investigation and compromized information is crucial to the security of our power supply and and our country," - said justice department spokesperson - "we are currently working with the FBI and various local law enforcemnet officials to identify and bring to justice responsible members of the underground organization." Attorney general is expected to give out more details in his address.
The "slash/dot" organization has been identified in the past as a source of criticism towards America's entertainment companies, the U.S. PATRIOT Act, Digital Millenium Copyright Act, and other laws of the land. This un-American behavior coupled with anti-White House sentiment and now, recent terrorist actions holding the joint task force website hostage has landed "slash/dot" on government's terrorist organizations list.
"That's fine," - said one Florida resident who wished to remain anonymous - "everybody has the right to free speech but if you go against the government and are accused of terrorism, then, as they say - you do the crime, you do the time, right?"
Attorney general John Ashcroft is expected to speak during primetime tonight to reach wider audience. Some skeptics argue that this address and timing is related to justice department's push to pass PATRIOT ACT II that will give law enforcement even more tools to combat terrorism. But justice department has hinted in the past that anyone expressing skepticism on the battle against terrorism may be classified as a terrorist as well.
On top of that, they didn't present any data on how these statistics were obtained. There are several factors that go into it, such as:
1. What is the concentration of virtual servers on a Linux server vs. a Windows server? i.e. if Linux servers host more virtual servers on average, then cracking a single Linux box would expose more websites. Are they comparing virtual or physical servers?
2. What was the success rate of an attack on each platform? i.e. compare total number of [reported verifiable] attempts vs. number of successful compromises on each platform.
3. What is the average concentration of different services/software running on a single box for each platform? i.e. if box A runs 3 services, and box B runs 20, then, everything else being equal, box B is likely more vulnerable.
4. What is the distribution on sizes of websites/businesses that were compromized for each platform, and distribution of damages inflicted?
5. What constitutes a "successful and verifiable digital attack"? What types of compromises are included and what types are not?
There are likely more, just not off the top of my head.
Also, the article does not provide any insight into the following statement:
Microsoft Windows servers belonging to governments, however, were the most attacked (51.4 per cent) followed by Linux (14.3 per cent) in August.
Why such a discrepancy? How is the population of gov't server OSes different from commercial server OSes?
Well, I just don't see it that way. In a hypothetical scenario, if an Outlook worm distributed a KaZaA-like sharing application as its payload and installed and activated it on every Windows PC it touched, then I cannot imagine how affected users would be liable for activities of that worm.
However, if a person goes to a KaZaA's website, makes a conscious effort to download and install a sharing application, then most of the responsibility of sharing/distributing any content from his hard drives that he doesn't have the rights to distribute will lie with that person. I've never used KaZaA myself, but I've seen it on others' PCs; there are configuration options and choices on what files and directories to share, what not to share, how to quit, etc.
I also don't see how "I didn't know [distributing copyrighted content was illegal / this button did that / I was computer illeterate / etc.]" arguments are going to fly. They either directly fly into the face of ignorance of law with respect to the copyrighted material, or illiteracy/inability to operate a computer program. Neither of these is a good excuse. If you are not aware of copyright law, does not mean you are expempt from it. If you don't know how to operate a computer program (not a worm or a virus) it does not excuse you from your regular responsibilities. For example, if you don't know how to ride a bike and, while attempting, scratch someone's car on the street, you are still responsible for the damage. Your inability to ride on a bike is not a good excuse in court and does not free you from the liability.
Also, keep in mind that these are civil lawsuits, and RIAA is claiming damages; whether you agree with it or not, current copyright law provides for such process and retributions, and, just like in the bike-riding case, the damage has already been done.
Yet another "also", remember that file sharing programs are not illegal tools in and of themselves, but there are both legal and illegal ways to use them. There is no reasonable way to expect the authors of such software to guarantee that everyone's use of the software will be legal, or even that any default configuration will be legal on every possible installation. It is up to the users of the software to make sure they are using it in a manner that does not violate applicable laws. Just like your local bike shop cannot be held responsible if you use your newly purchased bike and accidentally scratch someone else's car(s) even if he (bike shop owner) knows beforehand you cannot ride a bike.
Wow, I actually sound like pro-RIAA here, but I am not! I just don't believe this is the right way to fight back. I am against extension of copyrights, DMCA subpoena clause and other restrictions. The right way to fight back is public awareness, electing officials that represent people and not media or other industry cartels; we desperately need more competition in the entertainment industry (and other industries as well) but what we are getting more of is industry lock-up, higher barriers to entry, trade organizations (read cartels), taxation for cartels' benefit and revenue stream, unreasonable government subsidies, and laws written by corporate lawyers rather than people's representatives.
I am no lawyer either but I believe in most cases ignorance is not a viable defense. I.e. the person who actively engaged in installation of the sharing/distribution software like KaZaA, Morpheus, etc. is ultimately responsible for damages caused to copyright owners by distributing copyrighted content that that person does not have the right to distribute. Your argument would hold more water if, for example, this functionality came with Windows installs and was turned on by default, and required specific user action to disable it; but that's not the case.
If you don't know what you are doing, either find out what it is you are actually doing to make sure you are not violating others' rights or engaging in illegal behavior, ask for professional advice, or don't do it at all. File sharing software is not an illegal tool in itself, but it can be used to infringe on others' copyrights, including GPL for that matter. This would be a reasonable expectation for most P2P users; and, in most cases, and everything else being equal, simple ignorance will not save the day.
Yes, but two wrongs don't make it right. Just because RIAA, MPAA et al. are engaging in illegal anti-competitive, price-fixing, you-name-it behavior does not mean that everyone else should either. If you do, then you know who will win that "war"; they control most media outlets and there is no way they are giving up on that power. You can't expect CNN or Fox News to be objective on many things, but especially on this issue.
The best way to combat their dominance is to increase public awareness that this restricted copyrighted material cannot be legally distributed in such manner; but, at the same time, the medium of Internet has brought us new possibility of entertainment and other content distribution not available before. As I mentioned, there are a lot of smaller bands producing all kinds of artistic content (ranging from very good to very bad) and willing to share it free! And once this medium becomes more reliable and proven in distributing such content there will be more and more of such artists. Just look at what mp3.com and Napster did for many otherwise very small and unknown bands. RIAA and MPAA chose not to take advantage of this medium, and chose to fight P2P (which is their right), but that doesn't mean the medium is dead.
When they are done with their lawsuits do you expect their revenues to skyrocket? Of course not! They will decline even more than before - that's my prediction. Not a lot of people are attracted to $15-$20 CDs anymore with 8 songs on each CD. Maybe, with the public awareness in the right direction this can be turned into something more positive which is fueling and increasing so much needed competition in the eintertainment industry.
Therein lies the major problem.
Nonsense! I don't share or download RIAA's, MPAA's or anyone else's copyrighted material that I don't have the right to distribute. But I DO share music files, video clips, software that I DO have the right to share! Yet I am in the same pool of people who are afraid that they may get a subpoena from RIAA just because one of my filenames matched their stupid queries (search
Donate to EFF to end this super-policing, above-the-law power granted to a private industry cartel that surely violates the Contitution.
You are under arrest for copyright infringement. You are presumed to be guilty until proven otherwise in a court of law. You have a right to remain silent, anything you say may be used against you...
I always tell others to share what they have rights to share legally. i.e. if you have ripped your CD collection to your PC, you probably don't have rights to distribute that content. However, you'd be amazed there are a lot of music (virtually any kind), movies, documentaries, etc. from independent artists, smaller studios that produce quality content (some good, some not so good) that are glad to have at least some of their content freely shared for gaining publicity, satisfaction, promotional, or similar purposes. Same can be said about software and other types of content. Just make sure that if it's not readily apparent that content is offered for distribution that you get an express permission from the author.
In fact, that's what I do myself. I do have some CDs that I have ripped to my HD for easier listening when I work but none of that content is shared; absolutely NONE! Because the way copyright law works right now that would be illegal.
This doesn't make sense. I think you are talking about sharing, not downloading. RIAA has no knowledge of what you download from a P2P network unless they share the content in question themselves. And, if they do, then that's going to significantly weaken their argument. It would be similar to me giving you one of my CDs for free and then accusing you of stealing that CD (to use RIAA's stealing analogy).
That being said, if you do download content from P2P network that you have reason to believe is illegally distributed, then you, the downloader can also be liable for contributory infringement along with the sharer. Again, do not download such content! IANAL, that's my understanding.
What I hope the RIAA actions accomplish is exactly this understanding. I hope one day to search and browse the P2P network for legally distributed content from musicians, bands, producers, programmers and other types of artists from all over the world without fear of some mega-corporation or cartel having above-the-law policing powers on every single network packet I send and receive. I believe this will eventually bring true competition in the currently oligopolistic, price-fixing, privacy intruding, anti-competitive entertainment industry, and that's a good thing (tm)!
What's the difference? Did the court ask how many times the violating webpage had been accessed since the injunction?
I was thinking they could make it even worse - what if it said "if you agree to these terms - do nothing, you will automatically be set up with all the greatest features of your laptop in ... 3 ... 2 ... 1 ... " and at the end in a small print - "If you'd like more time to read this page, press right-ctrl + left-shft + left-alt + tab + delete for a 5-second increment".
It would make just as much sense as agreeing to an agreement without having read it; just that all this would happen automaticlally for you.
IANAL (again), but I disagree. For example, you go to a local store and they are giving out "free sampler CDs". You pick one and take it with you. If the CD turns out to be illgally distributed, the worst, and very rarely, that you could be liable for is a contributory infringement; the best and usually - nothing at all.
Similarly, it is sharer's responsibility to make sure they are distributing the content they have rights to distribute. It is not downloaders' responsibility to make sure everything they download is legal. There is no legal or reasonable way that it could be enforced. Moreover, if you apply the same concept not to just songs and mp3s but to all other IPs, it gets more complicated. Am I, while browsing the web, required to make sure all content (images, flash animation, text, music, software, etc.) on any given website is licensed properly and does not infringe anyone's copyright? And do so before visiting any website? How about make sure they don't violate any web-related patents? Of course not!
In the above example (free sampler CDs), is it my responsibility to make sure that all songs on the CDs are properly licensed before grabbing one? If the CD contains contents from Warner Bros, Vivendi, BMG, would I be required to call each corporation and get an OK to grab the CD? Very unreasonable, and I don't see how that would be required by law. Similarly, if I download something off of P2P or anywhere from the Internet, I cannot be held responsible for taking extraordinary and unreasonable steps to make sure all content is "legal". In fact, it would make the user/downloader/customer's duty to be the judge and the jury of deciding whether all content they experience was legally obtained or not.
On top of all of the above, and as I stated in the grandparent post, it is the sharer that is making the alleged illegal copy and distributing the content. Copyright law, as far as I am aware, places more responsibility with copiers and distributors (the actual root of violation) than with users and consumers.
Now, having said all that, and as far as strictly P2P, if it can be argued and proven that a downloader had a reason to know and believe that the content he/she is about to download (without downloading it first) infringes on someone's copyright then the downloader could be proven to have been guilty of contributory infringement. i.e. downloading a file called "Madonna.mp3" may not qualify since this could possibly contain anything from Madonna's interview, comments, parody of her, etc. - to one of her complete songs. Also, with some songs/content, one could make an argument that a downloader had no knowledge of the infringement of copyright by sharer, e.g. as far as they knew, it could have been the copyright owner itself distributing (or allowing the distribution of) number of songs to promote their albums and related content (a la sampler CD). In fact, this may make a lot of difference in the future, if and when smaller bands and recording studios get more exposure through this way. There would be almost no way to reasonably tell whether any content was intentionally shared for promotion (or other) purposes, or whether it was illegally made available by the sharer.
Because of this, as far as I understand, legally (as well as practically but that's another issue), accusing downloaders would stand on more shaky grounds. Suing sharers, however, is a more clear-cut case. That's my understanding of the whole thing anyway.
I don't really see it as you do. Even RIAA doesn't argue what you say here. In fact, they have never argued that downloading is illegal. They have always said that sharing was. Calls from RIAA to users of kazaa and others have been to disable sharing. This makes sense since it is the sharer who actually allows others to get a copy of the content that they don't have a right to share, and it is the sharer who makes and sends copies of copyrighted content to others. In the worst case, downloader could be responsible for contributory infringement; in the best case - for nothing at all. But back to the previous argument below.
First of all, "shoot holes" does not mean "prove". Since they, the accusing party, would have to prove that the CD in question was scratched beyond repair, or lost, there was no backup, and likelihood that the person would purchase the CD again. You cannot be automatically assumed to be guilty without the accusing party proving it first.
Second, this gets further into a different argument as to what is being purchased when you purchase a CD. Do you purchase that medium as a physical item (with content)? Or do you purchase a lease to use the content contained on that medium?
In the former case, you have a right to make a backup copy of the CD content in case the original CD is scratched, lost, etc. Also, you can make copies (for yourself) to listen on your MD player, portable player, PC, In that sense, loss of one medium does not prevent you from restoring your backup, or enjoying the content from other media. The right to make personal copies, as far as I am aware, is not illegal. And then this goes back to accuser proving what happened with the original CD to make you download another copy, which cannot be proven for most of songs and such downloads.
However, in many respects, RIAA (and other IP corps) would like to have you believe in the latter, since they would like to have god-like control on their leasing or licensing of their IP. However, even in this case, a loss, or a damage to a CD does not invalidate your purchased right/lease/license to use the content. In fact, in this case, it would be reasonable to ask, and even legally require, the content owner to provide a replacement medium containing the leased content at the cost of the medium (rather than the market price of the content). If you establish a CD medium as a way or a key to using the leased content, then loss of a key should not prevent you, the purchaser, to your paid rights to the content. For other examples, if you lease a house or a car, losing your keys does not invalidate your car or property lease and definitely does not force you to sign another lease to get your car or house back. In fact, you are even allowed to make new keys on your own without any permission or involvement of the owner; frequently, you are expected to do so.
In either case, it is not a "slam-dunk" case of - if you download an mp3 file, you are automatically infringing copyright. But again, I agree that such downloading would fall on subjective interpretation, and could be considered to be anywhere from contributory infringement to nothing illegal at all.
Direct quote from Title 17, Chapter 1, Section 107:
Sec. 107. - Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors
[emphasis mine]
IANAL, but it's clear to me that the list of actions - criticism, comment, news reporting, etc. that follow the phrase "such as" are being used as examples and is not an all-inclusive list at all. The actual criteria that are used to determine whether an action is covered under fair use are listed items 1-4. For example, if you are simply downloading songs that you already own on CDs (1) is not commercial use; (2-3) it's not a substiantial violation, even though whole song(s) are being copied; (4) the potential market or value of the song(s) are not being diminished or affected in any way since you already own songs and CDs in question, therefore, not likely at all to purchase them again. In this sense, downloading the songs that you already own on a CD could be considered fair use.
The Stanford review correctly points out, however, that the interpretation involves some subjectivity, and does not necessarily apply to all cases alike.
Look at this quote from the ruling:
The mere fact that DVD CCA's trade secrets may have some link to a public issue does not create a legitimate public interest in their disclosure.
In other words, they are saying that, since this computer code looks like Greek (not even) to them, it's probably not important in the discussion and public debate. As they said, "adds nothing to the public debate". How can they say this? What do they know whether it adds to public debate or not? What is the definition of "public debate"? If you ask people who use this encryption method for research, documentation, studies, improvement of similar and better encryption methods, etc. then it does add to "public debate".
And what is that "government's interest in encouraging innovation and development" they keep referencing? Hell, here I was thinking it was public interest.
I did not yet read the ruling fully, but 2 problems I see are:
1. Trade secret law cannot trump free speech right granted by Constitution; It makes sense to use reasonable efforts to contain trade secret proliferation, but there's still parent poster's argument. IANAL either, but it is my understanding that trade secret law governs a contractual arrangement between private parties. Once a trade secret is put into public knowledge, then censoring the "secret" would constitute a violation of free speech rights of the people who were not part of the original trade agreement, and had no involvement in how the secret was obtained. How can a law that governs an arrangement between private parties trump a right given by the Constitution? It seems to me that the MPAA dispute should be with the party that violated the arrangement and did not take care of a trade secret, and the party that "stole" (knowingly improperly obtained) these secrets, and seek damages from them.
2. Court ruled that:
In this case, a Web site operator posted trade secrets owned by another on his Internet Web site despite knowing or having reason to believe that the secrets were acquired by improper means. The trial court found that the owner misappropriated these trade secrets
How could someone have a knowledge of how these trade secrets were obtained, and whether they were obtained in violation of some agreement between private parties? Why are all people bound by some agreement that 2 companies have made between each other?
First off, I'm a Mac user but fairly experienced using Unix/Linux.... ...
Do you really expect newbie users of Linux to understand "emerge -u world" by chance? If so, there is MUCH work to be done to Linux's software update model.
Surely, if you are an experienced Linux user, you realize that there is no such thing as "Linux's software update model" since Linux itself is just a kernel. Most popular user-friendly Linux distributions (Mandrake, RedHat, SuSE, etc.) do provide an easy interface to software patches and updates, which amounts to clicking an "Update" button, or an "Update" menu item. Obviously, some of the smaller, or "advanced" distributions may not.
I don't disagree with most of what you say there.
/. story submission. And then they go bragging about Mandrake, Gentoo, and other distributions including desktop installations, and browser statistics, supported by "no reliable" polls by their own admission. In fact the quote from the other ZDNet article that distrowatch references is as follows:
/. or any other polls to prove such a point is... well... I don't have a comment on that one.
My point was that Seibt was talking about large IT vendors supporting server OS in the arena of OS competition in the corporate server market... and the quote taken out of context from that interview. It seems we now both agree to this.
Now, I don't agree completely with Seibt's opinion, and, it's clear, neither do you. I believe other GNU/Linux distributions have a fair chance of grabbing a share of corporate server market, and getting reasonable support from large IT vendors. You bring a good example of Oracle. In the beginning Oracle only "supported" their software on SuSE, then RedHat (if I am not mistaken). But now, they are more distro-agnostic, and rightly so. If Yahoo can use FreeBSD, then it's only reasonable to think that some large corporation may predominantly use Debian on their servers, for example. Obviously, Seibt thinks otherwise (what does "pull a SCO" have to do with this, anyway?).
As far as distrowatch links, they seem to take the quote out of the context as well, just like the
Q: But if they're getting rid of Unix, that would suggest there's room for more Linux distributions. It's all open source. It's all transparent.
A: If you ask them, they will tell you they want to support two distributions.
The question, again, is about replacing Unix in corporate environment, not a Pentium II box in someone's parents' basement. In that sense, and in many others, none of these polls are accurate, make sense, or even relevant to Seibt's specific answer, and taking
The quotes you provide are all in response to different questions. They are out of context of the relevant question. The relevant question and answer interchange only touched upon server OSes in corporate environments.
In fact, and again, the OSes and related companies that Seibt mentioned when beginning that specific answer were Unix vendors HP, IBM AIX, Sun Solaris, SCO, who face competition from MS Windows. OK, So far he's talking about servers.
From that point, he goes to say that - the above companies, facing competition from MS, have to think about their strategies for the future because, in his view, industry has already decided that the only competitor to MS is Linux. OK, he's still talking about Unix vendors competing with MS in the server market and their strategy as far as Linux.
Now, when it comes to main competition against MS in this arena, there are only 2 companies/distros that are supported by large IT vendors [for the server market], and those are RedHat and SuSE. And, from that perspective, even Novell decided to bail out of OS competition. OK, he's still talking about servers.
Don't you see? He is discussing corporate server market, not desktop, not average Joe. This does not mean that the whole interview was about servers, but that the specific answer, and the quote that was taken our of context, definitely was.
Please read it again, he is talking about corporate server environment, and the question was about servers also.
Your quote is also out of relevant context since you fail to continue with the rest. Here is the relevant snippet:
/. story submission which quotes Seibt as: "Linux means two companies: RedHat and SuSE, and nobody else." Obviously, Linux does not mean two companies, it doesn't mean any company, Linux is just a kernel.
It's my view that the industry has decided there is one main operating system competitor to Microsoft, and that is Linux. Linux means two companies: Red Hat and SuSE, and nobody else. There will be no third distribution that will be supported by the large IT vendors. And from that perspective, even Novell decided not to compete anymore on operating systems. They now migrate all of their applications to Linux. This is a two-horse race between Linux and Windows. [emphasis mine]
So, there! He's giving his opinion about distributions that will be supported by "large IT vendors". He is also talking about Novell bailing out of OS competition. This is a corporate environment.
What is even more out of context is
If you want more, read the question thas was asked as well, and read it carefully, not just copy and paste. The question was:
But is it Unix or Windows that's being used less because of Linux? And will there be a shift in the future toward Linux replacing one or the other? For instance, as Linux on the desktop becomes more prevalent, will it be Windows that's more at risk?
The first question is: What OS is Linux displacing more right now: Unix or Windows? The second question is: As Linux gets more popular on the desktop, what OS will it displace more in the future?
In response to these questions he mentions HP, IBM AIX, Sun Solaris, and SCO, out of which his vendor analysis comes out. It is obvious he is talking about corporate server environments supported by "larte IT vendors"!
I don't know where you are reading this or getting this from; and I don't even know what "punitive"means in this case. Punitive is a term most often used in reference with punishment that is issued by government. Nobody in the private sector can legally punish you in that sense. They can terminate your employment, contract, and other deals that you have made with another private party, but confusing that with actual punishment ordained by government is mixing 2 different things in one. Read on for more.
It seems like you are complaining about employment laws here. This has nothing to do with free speech. Employment law is such in the U.S. that it allows what is called "employment at will". This means that both parties involved - employer and employee - can terminate the employment at any time and without any reason. For example, if you are an employee at John's Dry Cleaner shop "at will", John can terminate your employment any time he wants, without any reason, i.e. it doesn't matter what the reason is, it could be that he has a headache that day. The fair part of this deal is that so can you, as an employee, terminate your employment at any time, without any reason, e.g. because John has been saying things you don't agree with, and you don't like him after all. There go John's free speech rights, right? Of course not! This is your private life and private contracts you have made with other private parties. Constitution does not deal with the details of your private contracts and choices you make. That would be insane.
I would say it's less than obvious, much less, since you seem to have an incorrect perception of concpets such as "punishment" and "rights". 14th amendment, like all others deal with the government, federal and state. It does not deal with private industry, your neighbors, or your relatives:
Section 1. No state can violate rights of U.S. citizens - life, liberty, property without due process, and equal protection.
Section 2. How representatives should be apportioned from states
Section 3. Conditions under which you cannot hold a public office and other governmental functions if you had taken oath to support Constitution and then rebelled against it, unless Congress votes otherwise
Section 4. About public debt held by the United States
Section 5. Congress has powers to enforce laws based on the above
I think you are substituting notions of "state" and "government" with "my employer" and "my neighbor" in the Constitution. That is wrong. Constitution does not intend to protect you or to limit you in the choices that you and others make in your private life this way. In fact, it's quite the opposite. Constitution grants you freedom to make choices on your own, without undue government oversight. What you do with your freedom, whether you are an employee or an employer is totally up to you.