"According to your thinking, it would be illegal to photograph or for an artist to paint a picture of a house I designed and built and still own."
Well, it's not MY thinking -- architectural works are covered under copyright law in the U.S., which means that the copyright owner can control reproduction, derivative works, etc.
However, there are some limitations specific to architectural works, and the example you gave above is one of them:
120. Scope of exclusive rights in architectural works66 (a) Pictorial Representations Permitted. -- The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.
(b) Alterations to and Destruction of Buildings. -- Notwithstanding the provisions of section 106(2), the owners of a building embodying an architectural work may, without the consent of the author or copyright owner of the architectural work, make or authorize the making of alterations to such building, and destroy or authorize the destruction of such building.
So, what you suggested, taking photos or making a painting, would not be copyright infringement because of this section (assuming the structure is visible from a public vantage point) -- but may example could perhaps violate the reproduction right, which is still in force for architectural works.
Laches is a defense to the action, not a way to reduce damages. If you have laches defense, it doesn't matter whether there is infringement or not -- the patent or copyright holder would be barred from trying the infringement case in the first place.
"not so sure you DON'T have the legal right to do that as of now."
I am assuming you are talking about streaming from one computer to another -- in which case, it would almost certainly be against the rules under copyright law (in the U.S.), specifically 17 USC 106(6) (right to control digital transmission of a sound recording).
"How is digital music property? If take measurements of your house, and build a duplicate, am I taking your property away from you?"
No, you haven't taken any property -- but you may very well have infringed a copyright I (or my acrhitect) might hold on the architectural design of the house...
"They still have the right to the copyright, nothing was forged or stolen, merely copied. SO it is NOT stolen PERIOD it is A VIOLATION by ILLEGAL COPYING because the data is still in the posession from the copyright holder, not forced from another's posession. Your argument holds no legal grounds, and TYPING IN ANNOYING ALL CAPS WILL NOY MAKE YOUR POINT MORE VAILID."
Fine. Copyright violations are not theft. Feel better? There still are copyright laws on the books, however -- so even though you may not be criminally liable for theft, you can still be held civilly liable for copyright infringement. In fact, the civil penalties might be much worse than if you had simply stolen a song.
But I guess that's better, because at least it is not theft...
"Downloading is legal same as listening to someone elses CD."
You can keep saying this over and over, but in the U.S. at least, it just ain't true. Downloading is NOT legal -- read AMG v. Napster, it's pretty clear that the court holds both uploaders and downloaders responsible for copyright infringement. It may be true in your home country, but it is not true in the U.S.
"Copyright protects the publishing rights "
Publishing rights (in the U.S., at least) are just one of the six standard rights you get with a copyright -- not the only one:
106. Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
"Maybe if knowingly withholding prior art was a federal crime this would not have happenned."
Well, it's not a federal crime, but it is "inequitable conduct," and it can result in any number of things, chief of which are that the patent itself will likely be found to either be invalid or unenforceable, and that the patent agent or attorney who prosecuted the patent could find himself or herself without a license to practice before the USPTO...
"why don't they just sue for the ammount of $ they have stolen (i.e. the average cost of a CD) instead of charging these OUTRAGEOUS fees? Any body?"
Two reasons -- one is to punish (and therefore deter such behavior in the future), the second is to recoup legal fees and other expenses.
If you get caught shoplifting, do you just have to pay for the item you took? No, you have to pay a fine as well (that's the punishment part). I don't know about the UK, but in many U.S. states, a retailer who catches a shoplifter is also allowed to recoup part of their security costs from the shoplifter as well.
If all you were charged is the price of the CD, then maybe you would try and "get away with it," because at worst, all you'll have to do is buy the CD's at the end anyway. If you make the fines hurt, than people might think it's not worth it to download illegally.
And spare me the "copyright infringement is not theft" -- I was using shoplifting as an example, not that I am saying that copyright infringement is theft...
"Call me naive, but shouldn't a person's reward bear some resemblance to the amount of effort expended ?"
If that were the case, manual laborers would make way more than NFL punters...
But to answer your question directly, the answer is no, at least in the U.S. The courts have very explicitly noted that patents and copyrights protect innovation and creativity, and not "hard work" or "sweat of the brow." Mere hard work alone is insuffient to obtain a patent or copyright.
"The amount of effort and money needed to achieve these things in software is much, much less. It is quite viable for one person to come up with viable software "inventions". Witness the number of single-developer projects on SourceForge, for instance."
And none of this is relevant under U.S. law. Maybe it should be -- but it's not at this time.
"Your invention is also "protected" firstly by not needing to give away your source code, and secondly, by copyright. Reverse engineering (decompiling, etc.) is possible, but very difficult and time-consuming, and much more difficult than is the case with many more-traditional hardware "inventions"."
That's all well and good if you "invention" is a piece of functionality buried within a product. But what if the invention is the product itself? What is you come up with a novel method for doing something, and the product does that something? You're not protected by copyright or obfuscation or not giving away your source code, because anyone can see what your software does. If you were the creator, wouldn't you want to be able to protect it?
"So why is twenty years of "protection" anywhere near appropriate ?"
Because that's what everyone agreed on (1995 Uruguay patent talks). But, to be fair, there isno real reason why we couldn't have a different scheme for software patents. In the U.S., the standard utility patent (which covers software patents) is good for 20 years -- but we have different rules for design patents and plant patents, for example -- no reason we couldn't (in principle) have different rules for software patents as well.
"No, they may help you if you're the first person to think of the idea, and have enough capital to register the patent and load a magazine of patent lawsuits into a lawyer."
Two things:
1. In the U.S., at least, it doesn't have to be that expensive to get a patent. If you are willing to learn some of the tricks of the trade yourself, you can file and get a patent issued for only the costs of the fees, less than a thousand bucks. Of course, if you ask the biggest law firm on the block to do it for you, it make cost $15k. But in the middle, there are patent agents out there that will write and file an app for you for $1500 or so, plus fees. Saying that you have to have significant capital to get a patent is just wrong.
2. If you have a good patent, and there is someone out there pretty clearly infringing on your patent, there are a number of firms (in the U.S., again) out there that will take a plaintiff-side patent infringement case on contignency -- Niro Scavone out of Chicago comes to mind. So you don't have to have a lot of money up front to assert your patents, as long as you've got a good patent and a good case. If you don't have either, you probably shouldn'b be suing anyone anyway...
"Patents exist only to create incentive to invent new things, but they come with a price in that they punish those who invent things that have already been invented - which means if something is an obvious solution to a problem, one group can hurt many innocent inventors."
Well, first off you can't invent something that has already been invented, well, because it's already been invented... Semantics, I know...
But more to the point, if something is obvious -- and I mean really obvious, under the legal definitions, and not just a bunch of people using hindsight to say "hey, that's obvious," then a patent should not be issued. If it is, that is a problem with the patent office. But if there is no LEGAL obviousness problem, then the patent SHOULD be issued. The problem is that there can be a pretty big disconnect between what constitutes "legal" obviousness and what many people "think" is obvious (which usually involves hindsight...).
"In software, there already are incentives to create new things, so there's no need for patents."
So, everyone would be willing to program for free, and provide tech support for free? If a developer is receiving a paycheck, then that paycheck has to come from somewhere -- it usually comes from the sales of the software. But if that software can't be adequately protected, then another company -- who doesn't have to pay the developer -- can undercut the original company because costs are lower, and then the original company has no mmoney, and cannot "incentivize" it's developers.
So, unless software developers and testers and everyone else are willing to work for free, then yeah, there needs to be incentives to create.
"What ARE you talking about? Are you saying RIAA can prosecute file sharers criminally? Look at the law again. The Government prosecutes ALL defenders in ALL criminal cases. The RIAA is suing in civil courts against file sharers, just as you, me, or MADD or anyone else has the option to do against drunk drivers, file sharers, or people with the letter "Z" in their last name."
My point was -- which I obviously didn't make very clear -- was that in the case of drunk driving (being a criminal act with no civil counterpart), MADD cannot directly sue the drunk drivers. With copyright infringement, the RIAA has a right of action against both the downloaders (direct copyright infringement) and the P2P networks (vicarious and contributory infringement). I called the analogy flawed because, in the MADD case, MADD has no way of directly using the legal system against drunk drivers, but in the case of the RIAA, they do have a way of using the legal system directly. I wasn't parsing the difference between civil and criminal liability -- sorry if I wasn't clear on that point.
Just because "anyone can sue anyone else" doesn't mean that MADD has a right of action against drunk drivers, or you or I have a right of action against someone with the letter "z" in their last name. That's the difference between the RIAA and MADD.
"The discussion, and this case, is about whether a private corporation / group can bribe the Government to make a particular tool, that has both legal and illegal uses, totally illegal in order to serve their own narrow ends, at the expense of the rest of society. "
And you complain about ME parsing language!!! This could also be written as asking the courts to find the P2P networks liable for copyright infringement because they provide a tool that is overwhelmingly used to circumvent the RIAA's copyrights, at the expense of society's ability to easily infringe on the RIAA's copyrights.
"So let them use it -- as they are doing now with the file-swapper lawsuits, which I have no problem with -- instead of trying to make certain general-purpose tools they disapprove of illegal."
But why shouldn't they also be able to sue those who are contributorily and vicariously liable as well? If we didn't think that contributory or vicarious infringement should be illegal, why did we put the laws into place?
"If all you're saying is "The *AA should fail in lawsuits like this, and continue to use the courts without special dispensations or taxpayer subsidies from the rest of us", then we're in complete agreement, and the point of whether the analogy holds is moot."
I guess we are not in agreement. I don't really care one way or the other about the RIAA -- I just see that the P2P networks are expecting to be treated differently than are other contributory and vicarious infringers, and I think that the law should either be applied in a more evenhanded manner, or should be changed. If we think the social good of the P2P networks outweighs the rights of the copyright holders to effectively protect their copyrights, then fine. But I don't see anything special about the file sharing networks that should get them a "free pass" when certain types of websites and other service providers don't get the same type of free pass...
And no, I don't work for the RIAA or MPAA, I don't even DO copyright law at all, I'm just a casual observer...
Anyway, I guess the main point I wanted to make was this -- under current copyright law (in the U.S.), ISP's have a "safe harbor" that protects them from liability for copyright infringement when someone posts infringing materials on their servers -- but this protection requires the ISP's to do more than turn a blind eye to the infringing activity, it requires them to take certain actions when they are notified of the potentially infringing activity.
Maybe we could establish similar protections for P2P networks and torrents? However, the current modus operandi of the P2P players -- say nothing can be done, and do nothing -- simply isn't going to fly, and nor should it. Why should ISP's -- who certainly host more non-infringing materials than they do infringing materials -- have to take affirmative action to avoid liability, when a P2P network -- which by all accounts has an exactly opposite infringing-to-not ratio -- doesn't? That just doesn't make any sense.
But my point about policing themselves has more to do with trying to preempt situation where they get told by the congress or the courts how they should run their businesses -- if they were to take direct action themselves, maybe they could have more influence over the direction things are going. I just think that if they simply try and avoid liability by throwing up their hands, they are going to be told what they can and can't do, and I think that's what people would like to avoid.
Now, maybe file sharing of copyrighted works should be legal -- I think there are good arguments on both sides of that coin -- but currently, it's not, and as long as it isn't, there simply isn't any good reason why P2P networks should have a special "out" to avoid liability for vicarious and\or contributory copyright infringement when other people who may be equally as "blameless" -- like people who host chatboards like this one -- do not have any special protections, other than their own vigilance.
"They have NO BUSINESS going after the network itself though."
But that's where you and I disagree. You can't facilitate infringing activities, and then just wash your hands of the liability. If it were just a few people trading copyrighted files, then yeah, it would make a lot more sense to go after the traders, and leave the networks alone. But when it appears that the networks exist for the purpose of trading illegal files (and don't tell me that they don't -- how many people kept using Napster after they took down the illegal content?), then why shouldn't the copyright owners go after the file sharing services?
"Can't do it? I know, because it's IMPOSSIBLE."
I agree copmpletely.
"You can start filtering out searches and filenames. You can put in authentication. You can pray to whatever gods you worship for support. But you won't stop copyrighted files from being traded on a P2P network."
But the P2P networks aren't even willing to try and do any of this. Of course you are not going to be able to stop all unsavory uses of a P2P network -- but there is a world of difference (from a legal liability standpoint) of doing nothing versus trying to mitigate that damage.
"This isn't some local get together where you can boot out a member because he didn't pay his dues."
But why couldn't there be a system to boot people who are sharing contraband material?
Jeez, what's with the strawman arguments on this site, anyway?
Unless there is some hidden evidence somewhere, the fact is is that the P2P networks are primarily (overwhelmingly) used for copyright infringement -- if someone wants to have access to the P2P networks for legal uses, then yeah, they'll have to do something, because the presumption right now is that everyone using the P2P networks is violating someone's copyright -- you need to do something to change that presumption, or change the law so that what the P2P users are doing is no longer in violation of the copyright laws.
Plus, your drunk driving analogy is further flawed in that MADD does not have a private right of action against drunk drivers -- only the state can prosecute drunk drivers, or criminalize drunk driving. The RIAA, however, does have a right of action against copyright infringers.
"Like you, I realize that the Government MUST step in and remove people's ability to make their OWN choices about right and wrong uses of their tools, if we are to live in truly FREE fashion, and I can't understand what all the whining is about."
But I never said this -- what I said was that if people using the P2P networks are unwilling to police themselves, then the MPAA or RIAA -- enforcing their rights under copyright law through the court system -- will continue their legal attack against the networks and their users. This has nothing to do with the government, other than the court system, which we are all free to use, even the RIAA...
"Given this state of affairs, a decision against Grokster ("a P2P client which is used to trade copyrighted works") could well set a precedent that is used to take down any P2P system (given they'll all be used to trade copyrighted works some some degree)."
Well, then maybe it is up to those who want to use P2P to share legal files to set up a way to police the networks so that illegal materials are NOT shared. If people are unwilling to keep illegal material off the networks, they are simply inviting the copyright holders to come after them and shut them down.
"The essence of P2P is that users can share what they like, how they like. If the *AA are against this unfettered use of P2P, they are against P2P."
If P2P users are unable to accept any restrictions as to what they can share, then yeah, this is the result. The *AA, as I noted elsewhere, doesn't give a rat's ass about you sharing your vacation photos, home movies, or research data over the P2P networks -- if you don't share copyrighted material without permission, the *AA won't get involved. But if P2P users are unwilling to police themselves, or accept any restrictions, then they are going to continue to be hounded by the *AA.
"If MGM manages to get Grokster and Streamcast banned, it is quite likely that it will be used as a precident to ban other P2P networks and technologies. This especially includes BitTorrent."
Only if the other P2P networks or torrents are being used to share copyrighted materials without permission. Neither the RIAA or the MPAA give a rat's ass about people sharing vacation photos or work documents or scientific data. If that's what you are using P2P for, then you really don't have anything to worry about...
"Do you have scientific, documented, and incontrovertable evidence that the "majority of traffic on Grokster" is violating someone's copyright?"
Don't need THAT level of proof -- you only need "preponderance of the evidence" -- i.e., more likely than not -- in a civil court in the U.S...
"That sounds like "substantial non-infringing use" to me."
What does? Just because 300,000,000 is a big number doesn't mean that it is a "sunstantial non-infringing use" -- the 90%/10% number seems like it would be the better number to decide whether the non-infringing uses are "substantial" or not.
And look at it this way -- those numbers are 30 files per KaZaa users -- so each Kazaa user might be sharing (using your numbers) 3 non-infringing works for every 30 works they share -- does that STILL sound like a "substantial non-infringing use" or are you sticking to the bigger number that sounds more "sunstantial?" -- 'cause they're the same numbers, just parsed differently...
"The problem is that there are so many instances now where you are watching one of those "trusted" stations that don't generally show things that children shouldn't see and suddenly, something indecent appears."
But does that mean ALL stations should be regulated -- in other words, turning ALL stations into "trusted" stations? Why shouldn't people lobby the "trusted" stations to clean up their act, rather than require ALL stations to be "trusted" stations?
"All of you who are mocking the fact that this is being done "for the children", just think about what the world is going to be like 30 years from now when everyone has grown up being indoctrinated with sex, violence, and filthy language. It will be like one big whorehouse."
So, for the last thirty years their hasn't been sex, violence and filthy language on TV? We had HBO thirty years ago, and it was playing the same stuff then. Do we blame all of the current ills of the world on HBO and VCR's now?
Are "boobies" really that big of a deal? Why is it that nobody is complaining about "embedded reporters" showing firefights in Iraq, or the aftermath of suicide bombers in Israel, you'll buy toy GI Joe's and toy guns for the kids, but OH MY GOD BOOBIES! Just how is that gonna ruin a kid?
To me, that's the biggest problem with the U.S. -- we got founded by a bunch of guys from England who thought the Church of England wasn't prudish enough... Damn Puritans...
Honestly -- the first thing a baby sees is Mom's boobies...
"Bad example. If Coke were five times as expensive as Pepsi, I suspect even brand loyalty would begin to buckle."
That's not the point I was trying to make -- I was trying to point out that Coke is a monopoly, but because their product is unique, they can charge whatever they want for their product, and it is not anticompetitive behavior that would cause them to run afoul of antitrust laws.
But you are right -- there may be market reasons why they can't charge whatever they want for Coke in reality -- but these reasons aren't because of antitrust regulations...
Slashdot Mirror
"According to your thinking, it would be illegal to photograph or for an artist to paint a picture of a house I designed and built and still own."
Well, it's not MY thinking -- architectural works are covered under copyright law in the U.S., which means that the copyright owner can control reproduction, derivative works, etc.
However, there are some limitations specific to architectural works, and the example you gave above is one of them:
120. Scope of exclusive rights in architectural works66
(a) Pictorial Representations Permitted. -- The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.
(b) Alterations to and Destruction of Buildings. -- Notwithstanding the provisions of section 106(2), the owners of a building embodying an architectural work may, without the consent of the author or copyright owner of the architectural work, make or authorize the making of alterations to such building, and destroy or authorize the destruction of such building.
So, what you suggested, taking photos or making a painting, would not be copyright infringement because of this section (assuming the structure is visible from a public vantage point) -- but may example could perhaps violate the reproduction right, which is still in force for architectural works.
Laches is a defense to the action, not a way to reduce damages. If you have laches defense, it doesn't matter whether there is infringement or not -- the patent or copyright holder would be barred from trying the infringement case in the first place.
"not so sure you DON'T have the legal right to do that as of now."
I am assuming you are talking about streaming from one computer to another -- in which case, it would almost certainly be against the rules under copyright law (in the U.S.), specifically 17 USC 106(6) (right to control digital transmission of a sound recording).
"How is digital music property? If take measurements of your house, and build a duplicate, am I taking your property away from you?"
No, you haven't taken any property -- but you may very well have infringed a copyright I (or my acrhitect) might hold on the architectural design of the house...
"They still have the right to the copyright, nothing was forged or stolen, merely copied. SO it is NOT stolen PERIOD it is A VIOLATION by ILLEGAL COPYING because the data is still in the posession from the copyright holder, not forced from another's posession.
Your argument holds no legal grounds, and TYPING IN ANNOYING ALL CAPS WILL NOY MAKE YOUR POINT MORE VAILID."
Fine. Copyright violations are not theft. Feel better? There still are copyright laws on the books, however -- so even though you may not be criminally liable for theft, you can still be held civilly liable for copyright infringement. In fact, the civil penalties might be much worse than if you had simply stolen a song.
But I guess that's better, because at least it is not theft...
"Downloading is legal same as listening to someone elses CD."
You can keep saying this over and over, but in the U.S. at least, it just ain't true. Downloading is NOT legal -- read AMG v. Napster, it's pretty clear that the court holds both uploaders and downloaders responsible for copyright infringement. It may be true in your home country, but it is not true in the U.S.
"Copyright protects the publishing rights "
Publishing rights (in the U.S., at least) are just one of the six standard rights you get with a copyright -- not the only one:
106. Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
"Maybe if knowingly withholding prior art was a federal crime this would not have happenned."
Well, it's not a federal crime, but it is "inequitable conduct," and it can result in any number of things, chief of which are that the patent itself will likely be found to either be invalid or unenforceable, and that the patent agent or attorney who prosecuted the patent could find himself or herself without a license to practice before the USPTO...
Actually, it's "laches," not entrapment, but the idea is correct...
"why don't they just sue for the ammount of $ they have stolen (i.e. the average cost of a CD) instead of charging these OUTRAGEOUS fees? Any body?"
Two reasons -- one is to punish (and therefore deter such behavior in the future), the second is to recoup legal fees and other expenses.
If you get caught shoplifting, do you just have to pay for the item you took? No, you have to pay a fine as well (that's the punishment part). I don't know about the UK, but in many U.S. states, a retailer who catches a shoplifter is also allowed to recoup part of their security costs from the shoplifter as well.
If all you were charged is the price of the CD, then maybe you would try and "get away with it," because at worst, all you'll have to do is buy the CD's at the end anyway. If you make the fines hurt, than people might think it's not worth it to download illegally.
And spare me the "copyright infringement is not theft" -- I was using shoplifting as an example, not that I am saying that copyright infringement is theft...
There are a few lawfirms out there that will take patent infringement cases (plaintiff-side) on contingency.
"Call me naive, but shouldn't a person's reward bear some resemblance to the amount of effort expended ?"
If that were the case, manual laborers would make way more than NFL punters...
But to answer your question directly, the answer is no, at least in the U.S. The courts have very explicitly noted that patents and copyrights protect innovation and creativity, and not "hard work" or "sweat of the brow." Mere hard work alone is insuffient to obtain a patent or copyright.
"The amount of effort and money needed to achieve these things in software is much, much less. It is quite viable for one person to come up with viable software "inventions". Witness the number of single-developer projects on SourceForge, for instance."
And none of this is relevant under U.S. law. Maybe it should be -- but it's not at this time.
"Your invention is also "protected" firstly by not needing to give away your source code, and secondly, by copyright. Reverse engineering (decompiling, etc.) is possible, but very difficult and time-consuming, and much more difficult than is the case with many more-traditional hardware "inventions"."
That's all well and good if you "invention" is a piece of functionality buried within a product. But what if the invention is the product itself? What is you come up with a novel method for doing something, and the product does that something? You're not protected by copyright or obfuscation or not giving away your source code, because anyone can see what your software does. If you were the creator, wouldn't you want to be able to protect it?
"So why is twenty years of "protection" anywhere near appropriate ?"
Because that's what everyone agreed on (1995 Uruguay patent talks). But, to be fair, there isno real reason why we couldn't have a different scheme for software patents. In the U.S., the standard utility patent (which covers software patents) is good for 20 years -- but we have different rules for design patents and plant patents, for example -- no reason we couldn't (in principle) have different rules for software patents as well.
"No, they may help you if you're the first person to think of the idea, and have enough capital to register the patent and load a magazine of patent lawsuits into a lawyer."
Two things:
1. In the U.S., at least, it doesn't have to be that expensive to get a patent. If you are willing to learn some of the tricks of the trade yourself, you can file and get a patent issued for only the costs of the fees, less than a thousand bucks. Of course, if you ask the biggest law firm on the block to do it for you, it make cost $15k. But in the middle, there are patent agents out there that will write and file an app for you for $1500 or so, plus fees. Saying that you have to have significant capital to get a patent is just wrong.
2. If you have a good patent, and there is someone out there pretty clearly infringing on your patent, there are a number of firms (in the U.S., again) out there that will take a plaintiff-side patent infringement case on contignency -- Niro Scavone out of Chicago comes to mind. So you don't have to have a lot of money up front to assert your patents, as long as you've got a good patent and a good case. If you don't have either, you probably shouldn'b be suing anyone anyway...
"Patents exist only to create incentive to invent new things, but they come with a price in that they punish those who invent things that have already been invented - which means if something is an obvious solution to a problem, one group can hurt many innocent inventors."
Well, first off you can't invent something that has already been invented, well, because it's already been invented... Semantics, I know...
But more to the point, if something is obvious -- and I mean really obvious, under the legal definitions, and not just a bunch of people using hindsight to say "hey, that's obvious," then a patent should not be issued. If it is, that is a problem with the patent office. But if there is no LEGAL obviousness problem, then the patent SHOULD be issued. The problem is that there can be a pretty big disconnect between what constitutes "legal" obviousness and what many people "think" is obvious (which usually involves hindsight...).
"In software, there already are incentives to create new things, so there's no need for patents."
So, everyone would be willing to program for free, and provide tech support for free? If a developer is receiving a paycheck, then that paycheck has to come from somewhere -- it usually comes from the sales of the software. But if that software can't be adequately protected, then another company -- who doesn't have to pay the developer -- can undercut the original company because costs are lower, and then the original company has no mmoney, and cannot "incentivize" it's developers.
So, unless software developers and testers and everyone else are willing to work for free, then yeah, there needs to be incentives to create.
"What ARE you talking about? Are you saying RIAA can prosecute file sharers criminally? Look at the law again. The Government prosecutes ALL defenders in ALL criminal cases. The RIAA is suing in civil courts against file sharers, just as you, me, or MADD or anyone else has the option to do against drunk drivers, file sharers, or people with the letter "Z" in their last name."
My point was -- which I obviously didn't make very clear -- was that in the case of drunk driving (being a criminal act with no civil counterpart), MADD cannot directly sue the drunk drivers. With copyright infringement, the RIAA has a right of action against both the downloaders (direct copyright infringement) and the P2P networks (vicarious and contributory infringement). I called the analogy flawed because, in the MADD case, MADD has no way of directly using the legal system against drunk drivers, but in the case of the RIAA, they do have a way of using the legal system directly. I wasn't parsing the difference between civil and criminal liability -- sorry if I wasn't clear on that point.
Just because "anyone can sue anyone else" doesn't mean that MADD has a right of action against drunk drivers, or you or I have a right of action against someone with the letter "z" in their last name. That's the difference between the RIAA and MADD.
"The discussion, and this case, is about whether a private corporation / group can bribe the Government to make a particular tool, that has both legal and illegal uses, totally illegal in order to serve their own narrow ends, at the expense of the rest of society. "
And you complain about ME parsing language!!! This could also be written as asking the courts to find the P2P networks liable for copyright infringement because they provide a tool that is overwhelmingly used to circumvent the RIAA's copyrights, at the expense of society's ability to easily infringe on the RIAA's copyrights.
"So let them use it -- as they are doing now with the file-swapper lawsuits, which I have no problem with -- instead of trying to make certain general-purpose tools they disapprove of illegal."
But why shouldn't they also be able to sue those who are contributorily and vicariously liable as well? If we didn't think that contributory or vicarious infringement should be illegal, why did we put the laws into place?
"If all you're saying is "The *AA should fail in lawsuits like this, and continue to use the courts without special dispensations or taxpayer subsidies from the rest of us", then we're in complete agreement, and the point of whether the analogy holds is moot."
I guess we are not in agreement. I don't really care one way or the other about the RIAA -- I just see that the P2P networks are expecting to be treated differently than are other contributory and vicarious infringers, and I think that the law should either be applied in a more evenhanded manner, or should be changed. If we think the social good of the P2P networks outweighs the rights of the copyright holders to effectively protect their copyrights, then fine. But I don't see anything special about the file sharing networks that should get them a "free pass" when certain types of websites and other service providers don't get the same type of free pass...
And no, I don't work for the RIAA or MPAA, I don't even DO copyright law at all, I'm just a casual observer...
Arrghhh, hit "submit" on accident...
Anyway, I guess the main point I wanted to make was this -- under current copyright law (in the U.S.), ISP's have a "safe harbor" that protects them from liability for copyright infringement when someone posts infringing materials on their servers -- but this protection requires the ISP's to do more than turn a blind eye to the infringing activity, it requires them to take certain actions when they are notified of the potentially infringing activity.
Maybe we could establish similar protections for P2P networks and torrents? However, the current modus operandi of the P2P players -- say nothing can be done, and do nothing -- simply isn't going to fly, and nor should it. Why should ISP's -- who certainly host more non-infringing materials than they do infringing materials -- have to take affirmative action to avoid liability, when a P2P network -- which by all accounts has an exactly opposite infringing-to-not ratio -- doesn't? That just doesn't make any sense.
But my point about policing themselves has more to do with trying to preempt situation where they get told by the congress or the courts how they should run their businesses -- if they were to take direct action themselves, maybe they could have more influence over the direction things are going. I just think that if they simply try and avoid liability by throwing up their hands, they are going to be told what they can and can't do, and I think that's what people would like to avoid.
Now, maybe file sharing of copyrighted works should be legal -- I think there are good arguments on both sides of that coin -- but currently, it's not, and as long as it isn't, there simply isn't any good reason why P2P networks should have a special "out" to avoid liability for vicarious and\or contributory copyright infringement when other people who may be equally as "blameless" -- like people who host chatboards like this one -- do not have any special protections, other than their own vigilance.
"They have NO BUSINESS going after the network itself though."
But that's where you and I disagree. You can't facilitate infringing activities, and then just wash your hands of the liability. If it were just a few people trading copyrighted files, then yeah, it would make a lot more sense to go after the traders, and leave the networks alone. But when it appears that the networks exist for the purpose of trading illegal files (and don't tell me that they don't -- how many people kept using Napster after they took down the illegal content?), then why shouldn't the copyright owners go after the file sharing services?
"Can't do it? I know, because it's IMPOSSIBLE."
I agree copmpletely.
"You can start filtering out searches and filenames. You can put in authentication. You can pray to whatever gods you worship for support. But you won't stop copyrighted files from being traded on a P2P network."
But the P2P networks aren't even willing to try and do any of this. Of course you are not going to be able to stop all unsavory uses of a P2P network -- but there is a world of difference (from a legal liability standpoint) of doing nothing versus trying to mitigate that damage.
"This isn't some local get together where you can boot out a member because he didn't pay his dues."
But why couldn't there be a system to boot people who are sharing contraband material?
Jeez, what's with the strawman arguments on this site, anyway?
Unless there is some hidden evidence somewhere, the fact is is that the P2P networks are primarily (overwhelmingly) used for copyright infringement -- if someone wants to have access to the P2P networks for legal uses, then yeah, they'll have to do something, because the presumption right now is that everyone using the P2P networks is violating someone's copyright -- you need to do something to change that presumption, or change the law so that what the P2P users are doing is no longer in violation of the copyright laws.
Plus, your drunk driving analogy is further flawed in that MADD does not have a private right of action against drunk drivers -- only the state can prosecute drunk drivers, or criminalize drunk driving. The RIAA, however, does have a right of action against copyright infringers.
"Like you, I realize that the Government MUST step in and remove people's ability to make their OWN choices about right and wrong uses of their tools, if we are to live in truly FREE fashion, and I can't understand what all the whining is about."
But I never said this -- what I said was that if people using the P2P networks are unwilling to police themselves, then the MPAA or RIAA -- enforcing their rights under copyright law through the court system -- will continue their legal attack against the networks and their users. This has nothing to do with the government, other than the court system, which we are all free to use, even the RIAA...
"As for China, why can't they be free to decide what copyright laws suit them best?"
Because we can strong-arm them into signing up to Berne and TRiPs in order to be allowed to join the WTO and/or maintain MFN status...
"Given this state of affairs, a decision against Grokster ("a P2P client which is used to trade copyrighted works") could well set a precedent that is used to take down any P2P system (given they'll all be used to trade copyrighted works some some degree)."
Well, then maybe it is up to those who want to use P2P to share legal files to set up a way to police the networks so that illegal materials are NOT shared. If people are unwilling to keep illegal material off the networks, they are simply inviting the copyright holders to come after them and shut them down.
"The essence of P2P is that users can share what they like, how they like. If the *AA are against this unfettered use of P2P, they are against P2P."
If P2P users are unable to accept any restrictions as to what they can share, then yeah, this is the result. The *AA, as I noted elsewhere, doesn't give a rat's ass about you sharing your vacation photos, home movies, or research data over the P2P networks -- if you don't share copyrighted material without permission, the *AA won't get involved. But if P2P users are unwilling to police themselves, or accept any restrictions, then they are going to continue to be hounded by the *AA.
"If MGM manages to get Grokster and Streamcast banned, it is quite likely that it will be used as a precident to ban other P2P networks and technologies. This especially includes BitTorrent."
Only if the other P2P networks or torrents are being used to share copyrighted materials without permission. Neither the RIAA or the MPAA give a rat's ass about people sharing vacation photos or work documents or scientific data. If that's what you are using P2P for, then you really don't have anything to worry about...
"Do you have scientific, documented, and incontrovertable evidence that the "majority of traffic on Grokster" is violating someone's copyright?"
Don't need THAT level of proof -- you only need "preponderance of the evidence" -- i.e., more likely than not -- in a civil court in the U.S...
"That sounds like "substantial non-infringing use" to me."
What does? Just because 300,000,000 is a big number doesn't mean that it is a "sunstantial non-infringing use" -- the 90%/10% number seems like it would be the better number to decide whether the non-infringing uses are "substantial" or not.
And look at it this way -- those numbers are 30 files per KaZaa users -- so each Kazaa user might be sharing (using your numbers) 3 non-infringing works for every 30 works they share -- does that STILL sound like a "substantial non-infringing use" or are you sticking to the bigger number that sounds more "sunstantial?" -- 'cause they're the same numbers, just parsed differently...
"The problem is that there are so many instances now where you are watching one of those "trusted" stations that don't generally show things that children shouldn't see and suddenly, something indecent appears."
But does that mean ALL stations should be regulated -- in other words, turning ALL stations into "trusted" stations? Why shouldn't people lobby the "trusted" stations to clean up their act, rather than require ALL stations to be "trusted" stations?
"All of you who are mocking the fact that this is being done "for the children", just think about what the world is going to be like 30 years from now when everyone has grown up being indoctrinated with sex, violence, and filthy language. It will be like one big whorehouse."
So, for the last thirty years their hasn't been sex, violence and filthy language on TV? We had HBO thirty years ago, and it was playing the same stuff then. Do we blame all of the current ills of the world on HBO and VCR's now?
Are "boobies" really that big of a deal? Why is it that nobody is complaining about "embedded reporters" showing firefights in Iraq, or the aftermath of suicide bombers in Israel, you'll buy toy GI Joe's and toy guns for the kids, but OH MY GOD BOOBIES! Just how is that gonna ruin a kid?
To me, that's the biggest problem with the U.S. -- we got founded by a bunch of guys from England who thought the Church of England wasn't prudish enough... Damn Puritans...
Honestly -- the first thing a baby sees is Mom's boobies...
"Get what? That parents *have* to have 2 jobs, and don't have the time to raise their kids?"
If they don't have time to raise the kids, maybe they shouldn't have them.
"Bad example. If Coke were five times as expensive as Pepsi, I suspect even brand loyalty would begin to buckle."
That's not the point I was trying to make -- I was trying to point out that Coke is a monopoly, but because their product is unique, they can charge whatever they want for their product, and it is not anticompetitive behavior that would cause them to run afoul of antitrust laws.
But you are right -- there may be market reasons why they can't charge whatever they want for Coke in reality -- but these reasons aren't because of antitrust regulations...
"Your correct, I was more saying that personally I don't have an issue with a company being or abusing a monopoly unless its an essential service."
Oh, sorry If I misread the intent of your earlier post.