The produce inspection stations are still there, but none of them are operating right now due to our budget problems in CA...
Re:Parent is flamebait and trollish. Mod down.
on
LokiTorrent Shut Down
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"They were not illegally distributing intellectual property, just effectively linking to it."
Yep -- for now. The AMG v. Napster ruling would not apply to the torrents, most likely, but only to the end-users of the torrents. However, I think that the Supreme Court is probably not going to have anything nice to say about Gnutella, and these torrents WILL become illegal in short order -- but I'm not on the Supreme Court, I'm only an interested observer.
"Shouldn't the MPAA be spending their time to go after the actual distributors instead?"
It doesn't matter whether you are fighting a legal or military battle -- the best way to soften up the other guy is to disrupt or wipe out the supply lines...
"WTF? Its the downloaders making the copies, not me. I'm just sharing the material and providing the equipment to make the copies, not causing the copies to be made."
Two things.
First, copyright law explicitly allows libraries and other "archives" to do things that would get you or I into a whole heap of trouble. Same thing for ISPs -- they can get an "out" where individual website owners can't. So comparing yourself to the library isn't a good exmple.
And, despite what people here like to believe, both sharers AND downloaders are liable for copyright infringement -- AMG v. Napster made that point very clearly.
"Actually technically it's legal if I get it from an FTP site. The site is breaking the law but I'm not."
Why do people persist in believing this? Downloaders are just as liable for infringement as are sharers.
Read AMG v. Napster -- the court very explicitly said downloaders and sharers are direct copyright infringers, and the court very carefully distinguished between lawful exercises (under Universal v. Sony and RIAA v. Diamond) and unlawful exercises (Napster).
No matter how many times you say it -- downloading an infringing work, under current case law, is direct copyright infringement. It's not my opinion, it's the law.
"Actually, that's not "theft, period". Theft is depriving someone of real property without compensation*. Copyright infringement is not theft, period. *(certain non-property crimes, e.g. "theft of services", have "theft" in their name, but "theft" alone can only be a property crime."
Where did you get your JD from? If I hack into your bank account and move a few bits from your account to mine, I haven't taken anything tangible, but I would bet you would think that was theft.
And what's this about compensation? If you take something, it's still theft, even if you later pay for it.
""Future sales", or "sales that might have been" are worth exactly squat."
I guess you've never studied contract law...
"This is why it's sheer folly to attempt to frame the copyright debate in the same terms as property rights. They are unrelated."
"Naw. Copyright law is about protecting the public interest in the promotion of the progress of science. It just does that by the means of, among other things, promoting the economic interests of copyright holders, and then not to excess."
Agreed. I was just short-cutting to the practical application...
"Mm. Plus of course, I'm very much in favor of changing the laws. Copyright law as implemented sucks ass. But were the implementation to be significantly changed, I think it would be really beneficial to everyone."
I agree that most of the more recent laws are pretty crazy, but a lot of copyright law I agree with.
I would be all for changing some of the copyright laws, especially since copyright is just a hobby for me -- I make my money in patents...
But they are not the same rights adults are accustomed to. Here's blurb with some of the key cases listed:
"All people in the United States are guaranteed this right by the Constitution. Students, however, do not have this right to the same extent as adults. This is because public schools are required to protect all students at the school. The major aspects of this right are speech and dress. Both the right to speech and dress are not absolute in public high schools. According to the American Civil Liberties Union: "You (students) have a right to express your opinions as long as you do so in a way that doesn't 'materially and substantially' dirsupt classes or other school activities. If you hold a protest on the school steps and block the entrance to the building, school officials can stop you. They can probably also stop you from using language they think is 'vulgar or indecent'("Ask Sybil Libert" ACLU 1998). Public schools can also restrict student dress. In 1987 in Harper v. Edgewood Board of Education the court upheld "a dress regulation that required students to 'dress in conformity wit hthe accepted standards of the community'"(Whalen 72). This means that schools can restrict clothing with vulgarities and such, but they cannot restrict religious clothing: "School officials must accomodate student's religious beliefs by permitting the wearing of religious clothing when such clothing must be worn during the school day as a part of the student's religious practice"(Whalen 78)."
Here's some other stuff:
"Veronia v. Acton 1995
In Veronia v. Acton the issue concerned the drug testing of athletes at an Oregon Public High School. In 1995, drug abuse was a major problem in Veronia, Oregon, and the school district reacted by implementing a policy of drug testing all student athletes. When a member of the Acton family had signed up for athletics in the school district, the parents did not sign the testing agreement. They believed this policy violated their son's privacy. The United States Supreme Court felt that this policy of drug testing was constitutional and that by voluntarily becoming an athlete the person gave up some privacy (Harrison and Gilbert 175). These cases helped all those involved with public high schools know exactly the rights of public school students."
"For instance, if you assume a value of 1% of the retail sale of the item, then that means when I buy a TV, Sony can say I cost them 1% of the value of one of their TVs if I buy a Toshiba instead."
But that's not an equivalent analogy, because there is no direct connection between you buying a Toshiba and Sony. A better analogy would if someone stole all of the plans to build a Sony TV, built it, and then gave it to you (or sold it to you for less than buying a Sony form the store) -- that would be a closer analogy, and in that case, Sony probably would be justified in receiving some compensation for their lost sales.
In the P2P world, the industry is selling copies of the latest JLo song -- if you obtain a copy of the latest JLo song from an illegal source, then you obviously "wanted" a copy of the song, and therefore it is reasonable to assume that you are a "lost sale." Now, maybe you weren't 100% sure you would have paid for the song, so we don't value the loss at 100% of its value, but it is a quantifiable loss.
Now, if you stole, say a copy of a Britney Spears song, then of course it would be unreasonable for the owner of the JLo song to see that as a "lost sale," because we have no way of knowing what your intentions were vis-a-vis the JLo song.
"If a reviewer writes a negative review of a car causing people to not want to BUY that car, can the manufacuter sue the reviewer for causing the loss of potential sales? Maybe, if they could prove that a person who may have otherwise bought that car decided not to as a result of the review."
There is a cause of action, tortious interference, that might be applicable in a case like this. And the law doesn't require ironclad, 100% proof in civil cases anyway -- "prepoonderance of the evidence" is the standard -- basically, more likely than not. The dealership doesn't have to prove that he was going to buy the car, only that he was more likely than not giong to buy the car.
No, actually they would have a choice between suing for actual damages -- which, in your case, is the $15 they lost from the one CD -- or statutory damages, which can range from $750 to $30,000 (unless the copyright holder can prove willfullness, then he can get up to $100,000) per work infringed. See 17 USC 504(c) for further details.
Not true. The court in Napster clearly pointed out that both downloaders and sharers were direct copyright infringers. The Napster court went further, and noted that downloading files over the internet, even if you otherwise had a license to own the files (like, say, you owned a CD and want to download the files onto your PC instead of ripping them), downloading would STILL be infringing. Napster was distinguished from the two cases that would allow such a use -- the Sony Betamax case, and RIAA v. Diamond -- and said that since the files were out of the users control when they passed over the network, the use of file-sharing to "time-shift" or "space-shift" a file was infringing.
You may not like it, or agree with it, but under current caselaw, downloading is JUST as illegal as sharing.
"if I want to set emule to ZERO upload, I'll download at a rate of.0005 kbs, but I will get the files, and NEVER upload.... and not violate the laws.... "
"If you download a song illegaly, all you have done is possibly eliminate a potential sale.?"
But isn't that a real cost as well? It may be less that, say, a retail cost, but it does have a cost -- it's not zero. So when you have illegally downloaded a song, you have stolen something -- the value of not only a potential sale to you, but to everyone who then shares from you. You have stolen something of economic value, and that's theft, period.
It may be complicated to determine just how much that economic loss is, but it sure isn't zero.
Your analogy is flawed in another way to -- when you talk about the "real cost," you fail to include "lost profits" -- those profits are also stolen when a "tangible" item is stolen. Whin an intangible object, maybe all you have stolen is the lost profits -- but again, it's stealing nonetheless.
"a) show me where in the Law it says that I can not do as I please with copyrighted material in my possession *for my own private use*."
See 17 USC 106 et seq. There is no general rule in copyright law that allows you to "do what you please" for "your own private use." You may think there is, you may want there to be, you may feel like there should be, but there isn't. There are a few exceptions, like fair use (section 107), making backup copies for software (section 117), and so on, but no law that says "if you are only doing it for your own private use, it's cool."
"You are correct, they are NOT normally licensed to ordinary customers. Instead, copies are purchased, and once obtained posession alone is proof of the right to use the work"
Right to use is the correct term -- but not the right to reproduce, at a minimum, and probably not the right to do any of the other 106 rights either (except the right to distribute the particular copy you purchases).
"there IS a legal reason for different treatment - that is, Copyright Law is about Distribution rights, and Copyright Infringements are about violations of the right to distribute. Acquisition of the works is not covered by copyright infringement - just infringing distribution."
Bull. Copyright law is about protecting the economic interests of the copyright owner -- see Campbell v. Acuff-Rose music for a discussion on fair use rights and the protection of economic interests. Acquisition of the work may very well be copyright infringement -- think about it, if an artist places a photo that they have copyrighed on their website for you to view, but does not give you the right to copy it, but you do anyway, you have just infringed on the artist's rights to control his work, and you have infringed his copyright. It ain't just about distribution.
"I believe it is YOU that is incorrect, and I believe it is YOU that has completely bent over for some faceless corporate entity."
You can believe what you want. I believe that you, and most of the other folks on/. can't, or don't, want to hear the truth. You can try to change the laws, but the laws are what they are, until they are changed, no matter how much you bitch about it, and no matter how many times you tell lawyers -- who know what the law actually is -- that they are "bent over" for the machine...
"Sorry to burst your bubble, but I've been working on a comment for a law review on just this very topic."
Why does that burst his bubble? He said that since the article is not in a law review journal, the courts aren't gonna pay attention to the article -- the fact that you are writing a comment on the same topic that may or may not be published has nothing to do with THIS article.
"So, they will often speak in broad language when they feel it is appropriate to address a whole range of issues with a single decision."
And they will other times rule on such a narrow aspect of a case that the ruling will not apply to any other case. See Bush v. Gore for an example...
"The last blurb was rather interesting, though at the end it would seem to argue against what you are saying with the ending "other mail companies--more intent on making a profit than making a point--kept a low profile and flourished.". What other companies are they talking about here? It seems kid of like that one guy basically was out to shut down the post office, and that in turn caused him problems he might not have had otherwise. I'm not saying that was right at all or that perhaps he was basically illegally forced out of buisness, but I;m not sure it totally goes to proove you cannot set up a seperate mail service."
That was just the first of about 5 or 6 paragraphs on different private mail services that got smacked down by the USPS right around the middle of the 1800's. There are also a SCOTUS case (or maybe more than 1) upholding the right of Congress to establish and maintain a postal monopoly.
"The point about the mailboxes is a really good one, though aren't other companies allowed to use mail slots? It seems like that only matters for personal mail."
I don't know about this. My guess is that a mial slot, actually being in your house, may be different than a box by the street. But the mailbox by the street is federal property (even if you bought it at Home Depot and put it up yourself), and it is a federal offense to tamper with it.
"First of all, what is considered standard first class mail? It seems like FedEx and other companies have letter-sized cases for just this sort of mail."
Do they? Every time I've had to send a "letter" via FedEx or Airborne I've had to put it into an 8x10 envelope. My understanding (admittedly imperfect) is that a standard envelope can only be handled by the USPS.
What I meant to say in the last line above is: I guess if you wanted to send all of your first-classmail by FedEx, you could, but it would need to be sent as a parcel -- if you tried to send simply a small envelope, FedEx wouldn't accept it because it would run afoul of the U.S. postal monopoly. That's part of the reason you have to put things into those big envelopes before they will send it.
"Other than not having access to USPS mail boxes (which are USPS private property), what is there to prevent you from creating a mail server or using FedEx to mail whatever you want?"
If you want to carry standard, first-class mail, then the "what is there to prevent you" is the U.S. Constitution, Article 1, Section 8, Clause 7: [The congress shall have the power] To establish Post Offices and post Roads;
This has been repeatedly interpreted to give the U.S. authority to create and maintain a monopoly on delivery of mail in the U.S.
But yeah, you could start your own FedEx service if you wanted to -- but they are not delivering mail, they are delivering "parcels." I guess if you wanted to send all of you first-class mail by FedEx, you could...
"Courier services, or even inter-city FedEx/UPS would all seem to be examples of "setting up a small-time mail service"."
But they are not allowed to carry standard, first-class mail. And they are not legally allowed to put stuff in your mailbox.
"I don't understand when the Post Office has ever strong-armed anyone who was doing something similar, though I am open to the possibiliy if you have a link or two."
Here's a blurb from a page that discusses the USPS monopoly:
"The most controversial business was the American Letter Mail Company, organized by Lysander Spooner. Spooner was not a businessman but a radical political reformer. He set up a mail service between New York, Boston, Philadelphia, and Baltimore partly to make money but mainly as a challenge to the constitutionality of the postal monopoly. The Articles of Confederation of 1778 had vested the Congress with the ``sole and exclusive right [of].|.|. establishing and regulating post offices'' (Art. IX). The Constitution had simply granted ``the power to establish post offices and post roads.'' This language led many, including Justice Joseph Story, to doubt whether the power the Constitution gave to set up posts and post roads was intended to be exclusive (Spooner 1971: I, 21; Priest 1975: 45-46). Spooner argued the postal monopoly was unconstitutional and in his newspaper advertisements he offered to cooperate with the government in bringing the issue in front of the Supreme Court if the government would leave his company unmolested until the issue was settled (New York Tribune, 20 January 1844). The Postmaster General was unwilling to cooperate, and Spooner was driven out of business after six or seven months due to fines, legal expenses, and the irregularity of his mail caused by government seizure (Spooner 1971, I: 14). Spooner also may have lost business to more efficient firms. While he riled the federal government with his ``impudence'' (House Committee on the Post Office and Post Roads 1843-44a), other mail companies--more intent on making a profit than making a point--kept a low profile and flourished."
"Sorry, I can see no benefit in software patents for most of the European industry (including me as a freelancer) and frankly speaking I DO NOT want to be at the mercy of such 'nice' law "companies" because they still want their share and it would still be a major lockdown and uncertaincy on my business during time before court."
You do realize that patent litigation in the EU is VERY different than it is for the U.S., don't you? For one thing, EU patents do NOT have a presumption of validity as do U.S. patents. In the U.S., the courts presume a patent is valid, and start the litigation from that point, and it is up to the defendant to prove that the patent is invlaid.
For EU patents (and most, if not all, European national patents), the court does not presume that a patent is valid unless it has ALREADY been tested in another infringement action. A patent litigation case starts with the plaintiff having to prove that his patent is valid to begin with, and even if he does, the defendant STILL has a chance to try and prove invalidity.
So, while I don't agree completely with the parent, software (and other patents) are a very different animal in the EU than they are in the U.S., and you can overdo the extrapolation when listing off the evils that software patents will bring to the EU...
"With costs for a patent court case in the range of >1000000 USD and durations of several years how can any small company or individual defend his/her rights before court? Imagine a small company with a 1-2 products, now take away one of the products because of a patent case - "He is dead, Jim"!"
You do realize that there are law firms -- good ones, even -- that will take a patent infringement case on contingency, if a small company has a good patent and wants to assert it against someone against whom they have a good case. Heres an example: Niro Scavone
So it's not quite as bleak as you suggest.
"The only people profiting from software patents are laywers and companies with deep pockets."
Not always. There are now the small organizations that buy up patents from other companies (usually small companies, or bankruptcy sales, etc.) and then assert them against big companies. Since they have no products of their own, the usual cross-licensing method of avoiding an infringement lawsuit between two companies doesn't work, and the big company has to either settle or duke it out. So yeah, there are some other players that make money via the patent litigation route...
"When was it that a degree in computer science finally became an acceptable qualification?"
Kind of off of the subject, but a computer science degree is generally only an acceptable qual to take the patent bar if it is given by the university's school of engineering -- if the degree is offered by, say, the school of mathematics, then the degree itself does not qualify, and if you want to take the patent bar, you need to qualifu under track B, which means a certain number of physics and chemistry courses, along with a few other courses.
At least, that's how it was when I took the patent bar a few years ago -- I don't know that it has changed since then.
But if the pirates can't see the light, how will they keep their ships from running aground? Do you really want all of that wreckage floating around? And what about all of that booty?
I too remember that time (unfortunately!) -- I remember when the really crappy stuff said "made in Japan." Then, around the time that Japan was supposed to take over as the next World power, their standard of living rose to meet their place in the World standings, and stuff from Japan just wasn't cheap anymore, and the U.S. started competing on quality, and that pretty much ended Japan's rise to stardom.
Then the junk came from Korea. Now th junk comes from China. Eventually, the junk will come from Africa or someplace.
The reason China's rise (and Korea's rise and Japan's rise before) is so dramatic is because it started from nothing -- if you are at the bottom, it's pretty easy to double your output or double your growth. But when you are already at the top, it's pretty tough to make dramatic strides.
Maybe China will prove history wrong, and continue to grow even once it becomes harder and harder to make that next incremental step. I guess we'll just have to wait and see. But it certainly isn't inevitable...
"Allowing a method to do something be patentable is absolutely stupid. Can you imagine if the doctor who developed organ transplant surgery patented all his findings and demanded huge royalties each time a transplant was carried out?"
This might come as a suprise, but medical techniques are patentable. However, under 35 USC 273, use of such a technique by a nonprofit organization (like a hospital or university) would not be an infringing use.
Now, if the hospital were a for-profit hospital, then you might have an infringement issue...
Slashdot Mirror
The produce inspection stations are still there, but none of them are operating right now due to our budget problems in CA...
"They were not illegally distributing intellectual property, just effectively linking to it."
Yep -- for now. The AMG v. Napster ruling would not apply to the torrents, most likely, but only to the end-users of the torrents. However, I think that the Supreme Court is probably not going to have anything nice to say about Gnutella, and these torrents WILL become illegal in short order -- but I'm not on the Supreme Court, I'm only an interested observer.
"Shouldn't the MPAA be spending their time to go after the actual distributors instead?"
It doesn't matter whether you are fighting a legal or military battle -- the best way to soften up the other guy is to disrupt or wipe out the supply lines...
"WTF? Its the downloaders making the copies, not me. I'm just sharing the material and providing the equipment to make the copies, not causing the copies to be made."
Two things.
First, copyright law explicitly allows libraries and other "archives" to do things that would get you or I into a whole heap of trouble. Same thing for ISPs -- they can get an "out" where individual website owners can't. So comparing yourself to the library isn't a good exmple.
And, despite what people here like to believe, both sharers AND downloaders are liable for copyright infringement -- AMG v. Napster made that point very clearly.
So, it's not quite as one-sided as you fear...
"Let them get the average salary. That's what they diserve."
So what salary do you "deserve?" And who get's to decide?
"Maybe these people are making way too much money."
Maybe we think YOU are making too much money?
"Actually technically it's legal if I get it from an FTP site. The site is breaking the law but I'm not."
Why do people persist in believing this? Downloaders are just as liable for infringement as are sharers.
Read AMG v. Napster -- the court very explicitly said downloaders and sharers are direct copyright infringers, and the court very carefully distinguished between lawful exercises (under Universal v. Sony and RIAA v. Diamond) and unlawful exercises (Napster).
No matter how many times you say it -- downloading an infringing work, under current case law, is direct copyright infringement. It's not my opinion, it's the law.
"Actually, that's not "theft, period". Theft is depriving someone of real property without compensation*. Copyright infringement is not theft, period. *(certain non-property crimes, e.g. "theft of services", have "theft" in their name, but "theft" alone can only be a property crime."
Where did you get your JD from? If I hack into your bank account and move a few bits from your account to mine, I haven't taken anything tangible, but I would bet you would think that was theft.
And what's this about compensation? If you take something, it's still theft, even if you later pay for it.
""Future sales", or "sales that might have been" are worth exactly squat."
I guess you've never studied contract law...
"This is why it's sheer folly to attempt to frame the copyright debate in the same terms as property rights. They are unrelated."
No, they are not. Copyright is a property right.
"Naw. Copyright law is about protecting the public interest in the promotion of the progress of science. It just does that by the means of, among other things, promoting the economic interests of copyright holders, and then not to excess."
Agreed. I was just short-cutting to the practical application...
"Mm. Plus of course, I'm very much in favor of changing the laws. Copyright law as implemented sucks ass. But were the implementation to be significantly changed, I think it would be really beneficial to everyone."
I agree that most of the more recent laws are pretty crazy, but a lot of copyright law I agree with.
I would be all for changing some of the copyright laws, especially since copyright is just a hobby for me -- I make my money in patents...
"1. Students have rights, even in school."
But they are not the same rights adults are accustomed to. Here's blurb with some of the key cases listed:
"All people in the United States are guaranteed this right by the Constitution. Students, however, do not have this right to the same extent as adults. This is because public schools are required to protect all students at the school. The major aspects of this right are speech and dress. Both the right to speech and dress are not absolute in public high schools. According to the American Civil Liberties Union: "You (students) have a right to express your opinions as long as you do so in a way that doesn't 'materially and substantially' dirsupt classes or other school activities. If you hold a protest on the school steps and block the entrance to the building, school officials can stop you. They can probably also stop you from using language they think is 'vulgar or indecent'("Ask Sybil Libert" ACLU 1998). Public schools can also restrict student dress. In 1987 in Harper v. Edgewood Board of Education the court upheld "a dress regulation that required students to 'dress in conformity wit hthe accepted standards of the community'"(Whalen 72). This means that schools can restrict clothing with vulgarities and such, but they cannot restrict religious clothing: "School officials must accomodate student's religious beliefs by permitting the wearing of religious clothing when such clothing must be worn during the school day as a part of the student's religious practice"(Whalen 78)."
Here's some other stuff:
"Veronia v. Acton 1995
In Veronia v. Acton the issue concerned the drug testing of athletes at an Oregon Public High School. In 1995, drug abuse was a major problem in Veronia, Oregon, and the school district reacted by implementing a policy of drug testing all student athletes. When a member of the Acton family had signed up for athletics in the school district, the parents did not sign the testing agreement. They believed this policy violated their son's privacy. The United States Supreme Court felt that this policy of drug testing was constitutional and that by voluntarily becoming an athlete the person gave up some privacy (Harrison and Gilbert 175). These cases helped all those involved with public high schools know exactly the rights of public school students."
I agree with 2 and 3, though.
"For instance, if you assume a value of 1% of the retail sale of the item, then that means when I buy a TV, Sony can say I cost them 1% of the value of one of their TVs if I buy a Toshiba instead."
But that's not an equivalent analogy, because there is no direct connection between you buying a Toshiba and Sony. A better analogy would if someone stole all of the plans to build a Sony TV, built it, and then gave it to you (or sold it to you for less than buying a Sony form the store) -- that would be a closer analogy, and in that case, Sony probably would be justified in receiving some compensation for their lost sales.
In the P2P world, the industry is selling copies of the latest JLo song -- if you obtain a copy of the latest JLo song from an illegal source, then you obviously "wanted" a copy of the song, and therefore it is reasonable to assume that you are a "lost sale." Now, maybe you weren't 100% sure you would have paid for the song, so we don't value the loss at 100% of its value, but it is a quantifiable loss.
Now, if you stole, say a copy of a Britney Spears song, then of course it would be unreasonable for the owner of the JLo song to see that as a "lost sale," because we have no way of knowing what your intentions were vis-a-vis the JLo song.
"If a reviewer writes a negative review of a car causing people to not want to BUY that car, can the manufacuter sue the reviewer for causing the loss of potential sales? Maybe, if they could prove that a person who may have otherwise bought that car decided not to as a result of the review."
There is a cause of action, tortious interference, that might be applicable in a case like this. And the law doesn't require ironclad, 100% proof in civil cases anyway -- "prepoonderance of the evidence" is the standard -- basically, more likely than not. The dealership doesn't have to prove that he was going to buy the car, only that he was more likely than not giong to buy the car.
No, actually they would have a choice between suing for actual damages -- which, in your case, is the $15 they lost from the one CD -- or statutory damages, which can range from $750 to $30,000 (unless the copyright holder can prove willfullness, then he can get up to $100,000) per work infringed. See 17 USC 504(c) for further details.
"DOWNLOADING a file breaks no law."
.0005 kbs, but I will get the files, and NEVER upload.... and not violate the laws.... "
Not true. The court in Napster clearly pointed out that both downloaders and sharers were direct copyright infringers. The Napster court went further, and noted that downloading files over the internet, even if you otherwise had a license to own the files (like, say, you owned a CD and want to download the files onto your PC instead of ripping them), downloading would STILL be infringing. Napster was distinguished from the two cases that would allow such a use -- the Sony Betamax case, and RIAA v. Diamond -- and said that since the files were out of the users control when they passed over the network, the use of file-sharing to "time-shift" or "space-shift" a file was infringing.
You may not like it, or agree with it, but under current caselaw, downloading is JUST as illegal as sharing.
"if I want to set emule to ZERO upload, I'll download at a rate of
Again, just not true under current caselaw.
"If you download a song illegaly, all you have done is possibly eliminate a potential sale.?"
But isn't that a real cost as well? It may be less that, say, a retail cost, but it does have a cost -- it's not zero. So when you have illegally downloaded a song, you have stolen something -- the value of not only a potential sale to you, but to everyone who then shares from you. You have stolen something of economic value, and that's theft, period.
It may be complicated to determine just how much that economic loss is, but it sure isn't zero.
Your analogy is flawed in another way to -- when you talk about the "real cost," you fail to include "lost profits" -- those profits are also stolen when a "tangible" item is stolen. Whin an intangible object, maybe all you have stolen is the lost profits -- but again, it's stealing nonetheless.
"a) show me where in the Law it says that I can not do as I please with copyrighted material in my possession *for my own private use*."
/. can't, or don't, want to hear the truth. You can try to change the laws, but the laws are what they are, until they are changed, no matter how much you bitch about it, and no matter how many times you tell lawyers -- who know what the law actually is -- that they are "bent over" for the machine...
See 17 USC 106 et seq. There is no general rule in copyright law that allows you to "do what you please" for "your own private use." You may think there is, you may want there to be, you may feel like there should be, but there isn't. There are a few exceptions, like fair use (section 107), making backup copies for software (section 117), and so on, but no law that says "if you are only doing it for your own private use, it's cool."
"You are correct, they are NOT normally licensed to ordinary customers. Instead, copies are purchased, and once obtained posession alone is proof of the right to use the work"
Right to use is the correct term -- but not the right to reproduce, at a minimum, and probably not the right to do any of the other 106 rights either (except the right to distribute the particular copy you purchases).
"there IS a legal reason for different treatment - that is, Copyright Law is about Distribution rights, and Copyright Infringements are about violations of the right to distribute. Acquisition of the works is not covered by copyright infringement - just infringing distribution."
Bull. Copyright law is about protecting the economic interests of the copyright owner -- see Campbell v. Acuff-Rose music for a discussion on fair use rights and the protection of economic interests. Acquisition of the work may very well be copyright infringement -- think about it, if an artist places a photo that they have copyrighed on their website for you to view, but does not give you the right to copy it, but you do anyway, you have just infringed on the artist's rights to control his work, and you have infringed his copyright. It ain't just about distribution.
"I believe it is YOU that is incorrect, and I believe it is YOU that has completely bent over for some faceless corporate entity."
You can believe what you want. I believe that you, and most of the other folks on
"Sorry to burst your bubble, but I've been working on a comment for a law review on just this very topic."
Why does that burst his bubble? He said that since the article is not in a law review journal, the courts aren't gonna pay attention to the article -- the fact that you are writing a comment on the same topic that may or may not be published has nothing to do with THIS article.
"So, they will often speak in broad language when they feel it is appropriate to address a whole range of issues with a single decision."
And they will other times rule on such a narrow aspect of a case that the ruling will not apply to any other case. See Bush v. Gore for an example...
"That doesn't work. Even if you bundle your first class letters together as a parcel, you would be infringing on the postal service's monopoly."
Maybe legally. But practically, I don't think the USPS checks every FedEx package to see if it is carrying contraband first class mail...
"The last blurb was rather interesting, though at the end it would seem to argue against what you are saying with the ending "other mail companies--more intent on making a profit than making a point--kept a low profile and flourished.". What other companies are they talking about here? It seems kid of like that one guy basically was out to shut down the post office, and that in turn caused him problems he might not have had otherwise. I'm not saying that was right at all or that perhaps he was basically illegally forced out of buisness, but I;m not sure it totally goes to proove you cannot set up a seperate mail service."
That was just the first of about 5 or 6 paragraphs on different private mail services that got smacked down by the USPS right around the middle of the 1800's. There are also a SCOTUS case (or maybe more than 1) upholding the right of Congress to establish and maintain a postal monopoly.
"The point about the mailboxes is a really good one, though aren't other companies allowed to use mail slots? It seems like that only matters for personal mail."
I don't know about this. My guess is that a mial slot, actually being in your house, may be different than a box by the street. But the mailbox by the street is federal property (even if you bought it at Home Depot and put it up yourself), and it is a federal offense to tamper with it.
"First of all, what is considered standard first class mail? It seems like FedEx and other companies have letter-sized cases for just this sort of mail."
Do they? Every time I've had to send a "letter" via FedEx or Airborne I've had to put it into an 8x10 envelope. My understanding (admittedly imperfect) is that a standard envelope can only be handled by the USPS.
What I meant to say in the last line above is: I guess if you wanted to send all of your first-classmail by FedEx, you could, but it would need to be sent as a parcel -- if you tried to send simply a small envelope, FedEx wouldn't accept it because it would run afoul of the U.S. postal monopoly. That's part of the reason you have to put things into those big envelopes before they will send it.
"Other than not having access to USPS mail boxes (which are USPS private property), what is there to prevent you from creating a mail server or using FedEx to mail whatever you want?"
If you want to carry standard, first-class mail, then the "what is there to prevent you" is the U.S. Constitution, Article 1, Section 8, Clause 7: [The congress shall have the power] To establish Post Offices and post Roads;
This has been repeatedly interpreted to give the U.S. authority to create and maintain a monopoly on delivery of mail in the U.S.
But yeah, you could start your own FedEx service if you wanted to -- but they are not delivering mail, they are delivering "parcels." I guess if you wanted to send all of you first-class mail by FedEx, you could...
"Courier services, or even inter-city FedEx/UPS would all seem to be examples of "setting up a small-time mail service"."
.|.|. establishing and regulating post offices'' (Art. IX). The Constitution had simply granted ``the power to establish post offices and post roads.'' This language led many, including Justice Joseph Story, to doubt whether the power the Constitution gave to set up posts and post roads was intended to be exclusive (Spooner 1971: I, 21; Priest 1975: 45-46). Spooner argued the postal monopoly was unconstitutional and in his newspaper advertisements he offered to cooperate with the government in bringing the issue in front of the Supreme Court if the government would leave his company unmolested until the issue was settled (New York Tribune, 20 January 1844). The Postmaster General was unwilling to cooperate, and Spooner was driven out of business after six or seven months due to fines, legal expenses, and the irregularity of his mail caused by government seizure (Spooner 1971, I: 14). Spooner also may have lost business to more efficient firms. While he riled the federal government with his ``impudence'' (House Committee on the Post Office and Post Roads 1843-44a), other mail companies--more intent on making a profit than making a point--kept a low profile and flourished."
But they are not allowed to carry standard, first-class mail. And they are not legally allowed to put stuff in your mailbox.
"I don't understand when the Post Office has ever strong-armed anyone who was doing something similar, though I am open to the possibiliy if you have a link or two."
Here's a blurb from a page that discusses the USPS monopoly:
"The most controversial business was the American Letter Mail Company, organized by Lysander Spooner. Spooner was not a businessman but a radical political reformer. He set up a mail service between New York, Boston, Philadelphia, and Baltimore partly to make money but mainly as a challenge to the constitutionality of the postal monopoly. The Articles of Confederation of 1778 had vested the Congress with the ``sole and exclusive right [of]
USPS Monolpoly Article
"Sorry, I can see no benefit in software patents for most of the European industry (including me as a freelancer) and frankly speaking I DO NOT want to be at the mercy of such 'nice' law "companies" because they still want their share and it would still be a major lockdown and uncertaincy on my business during time before court."
You do realize that patent litigation in the EU is VERY different than it is for the U.S., don't you? For one thing, EU patents do NOT have a presumption of validity as do U.S. patents. In the U.S., the courts presume a patent is valid, and start the litigation from that point, and it is up to the defendant to prove that the patent is invlaid.
For EU patents (and most, if not all, European national patents), the court does not presume that a patent is valid unless it has ALREADY been tested in another infringement action. A patent litigation case starts with the plaintiff having to prove that his patent is valid to begin with, and even if he does, the defendant STILL has a chance to try and prove invalidity.
So, while I don't agree completely with the parent, software (and other patents) are a very different animal in the EU than they are in the U.S., and you can overdo the extrapolation when listing off the evils that software patents will bring to the EU...
"With costs for a patent court case in the range of >1000000 USD and durations of several years how can any small company or individual defend his/her rights before court? Imagine a small company with a 1-2 products, now take away one of the products because of a patent case - "He is dead, Jim"!"
You do realize that there are law firms -- good ones, even -- that will take a patent infringement case on contingency, if a small company has a good patent and wants to assert it against someone against whom they have a good case. Heres an example: Niro Scavone
So it's not quite as bleak as you suggest.
"The only people profiting from software patents are laywers and companies with deep pockets."
Not always. There are now the small organizations that buy up patents from other companies (usually small companies, or bankruptcy sales, etc.) and then assert them against big companies. Since they have no products of their own, the usual cross-licensing method of avoiding an infringement lawsuit between two companies doesn't work, and the big company has to either settle or duke it out. So yeah, there are some other players that make money via the patent litigation route...
"When was it that a degree in computer science finally became an acceptable qualification?"
Kind of off of the subject, but a computer science degree is generally only an acceptable qual to take the patent bar if it is given by the university's school of engineering -- if the degree is offered by, say, the school of mathematics, then the degree itself does not qualify, and if you want to take the patent bar, you need to qualifu under track B, which means a certain number of physics and chemistry courses, along with a few other courses.
At least, that's how it was when I took the patent bar a few years ago -- I don't know that it has changed since then.
But if the pirates can't see the light, how will they keep their ships from running aground? Do you really want all of that wreckage floating around? And what about all of that booty?
I too remember that time (unfortunately!) -- I remember when the really crappy stuff said "made in Japan." Then, around the time that Japan was supposed to take over as the next World power, their standard of living rose to meet their place in the World standings, and stuff from Japan just wasn't cheap anymore, and the U.S. started competing on quality, and that pretty much ended Japan's rise to stardom.
Then the junk came from Korea. Now th junk comes from China. Eventually, the junk will come from Africa or someplace.
The reason China's rise (and Korea's rise and Japan's rise before) is so dramatic is because it started from nothing -- if you are at the bottom, it's pretty easy to double your output or double your growth. But when you are already at the top, it's pretty tough to make dramatic strides.
Maybe China will prove history wrong, and continue to grow even once it becomes harder and harder to make that next incremental step. I guess we'll just have to wait and see. But it certainly isn't inevitable...
"Allowing a method to do something be patentable is absolutely stupid. Can you imagine if the doctor who developed organ transplant surgery patented all his findings and demanded huge royalties each time a transplant was carried out?"
This might come as a suprise, but medical techniques are patentable. However, under 35 USC 273, use of such a technique by a nonprofit organization (like a hospital or university) would not be an infringing use.
Now, if the hospital were a for-profit hospital, then you might have an infringement issue...