You just can't win with some people. Yeah, we could go into the Sudan -- but then we wouldn't be acting under the auspices of the UN -- who are already there, handling "peacekeeping" activities -- and those same people who deride us for NOT being in the Sudan would be deriding us for being imperialistic by sending our troops to the Sudan...
Just like the UN did nothing in Rwanda -- oh yeah, they are their now, holding "war crimes" tribunals -- but where were they during the slaughter? Where was the UN during the Serbian episode? That was a NATO operation, and once again, mostly American military.
If yoou want the U.S. to go and put troops in every hot spot in the world, then don't bash us when we actually do, or when we make a decision on out own -- these are U.S. troops, paid for by the U.S., not "world" troops. If you think the UN should be running these missions, fine, but then you should be questioning why the UN does (or doesn't do) what is does (or doesn't)...
I know about online shoppng -- but since the parent was complaining about mail-order being too slow, I assumed that online shopping wouldn't provide the immediacy he was looking for either...
"Now maybe I'm just being a bigot but I don't think you have to have a passion for the law to be a good lawyer, you just need to have a passion for money."
Not being a bigot, but maybe a bit elitist or close-minded.
Seriously, there really is nothing special about computer programming -- ANYTHING that you want to excel at you have to be passionate about, whether it is computer programming, baseball, the law, whatever. Anyone with a minimum of brains can probably be an okay computer programmer, or an okay lawyer, or an okay whatever -- but pretty much any time you want to excel, you've got to be passionate about it, because you've got to keep practicing, and learning new stuff, and retraining yourself.
I've been a researcher, I've been a programmer, I've been a manager, and now I'm a lawyer. I was passionate (for a while, at least) about research, and I was good at it. I tried programming, I tried working as a manager, and while I was competant at both, I new pretty rapidly that I wasn't passionate about either, so I moved on. Now I'm a lawyer, and I am passionate about something again -- I love what I do (at least as much as anyone loves their job, I guess!). But the point is, if you are not passionate about what you do -- or at lest willing to fake it! -- you may be somewhat successful, but you'll never excel.
Do you sit there and stare into your refrigerator when you are out of beer too, and curse the supermarket industry for not providing a way to keep your fridge stocked without you having to leave your computer?
"I see that argument a lot. Does that mean if I put out a CD and don't want Jews buying it, I can do that? After all, it's my content and I can do as I see fit. What if Bill Gates decides that he doesn't want Windows being sold to blacks? It's his content, he can distribute it as he sees fit."
There isn't any law that would stop you or Bill Gates in this matter -- the Government is not allowed to behave in a racist manner, and sometime we don't allow certain private businesses that are providing public services (like employers, and certain other regulated industries) to behave in a racist manner, but there is not law that says YOU or any other private citizen cannot behave in a racist manner. You, as a private individual or a private company, generally have the right to refuse service to anyone. And for any reason, I might add.
"And don't give me that crap about "well THAT'S racism and therefore wrong". Just because there's an easily identifyable and socially "bad" -ism doesn't make it any different."
You are right, it doesn't make any difference.
"The fact is I can't even open a 7-11 and sell to only whites"
But the reason has more to do with the fact that this is considered a highly-regulated industry, and there is significant government involvment, and that stores that are generally open to the public have some regulations that, say, a private club wouldn't have.
"nor can I tell stores to sell my CD to only whites"
That you could do -- as a distributor, you can decide who you want to sell to, and put some restrictions on downstream sales (I am assuming you are talking about trademarked goods here) -- you probalby wouldn't get anyone to carry your work with such a restriction, but you could, in theory, do this.
But you certainly could sell them over the internet or something, or by mail, and refuse to sell to blacks, or whites, or whomever you want. Once again, it's not illegal to be a racist.
And in return, they get paid (potentially) and get other "consideration" for their contract. Speaking in economic terms, if the value to the artist of getting the record company to produce and sell their music is greater to them than having control over that music, then it is a rational decision to turn over control in order to gain a (perhaps perceived) greater benefit. Nobody is forcing these artists to give up control of their work -- they make a bargain.
"The publisher surrenders control, partially, to the consumer."
Again, you presumably make the economic decision that having a CD you can play in your car is more valuable to you than the $17.99 or whatever in your pocket.
"The part they do not surrender is, at least according to the law, the right to distribute. But ought they be able to withhold that right? "
Why shouldn't they be able to? Presumably the price of a CD is based in part on the fact that the right to freely distribute is not included. It would be safe to say that a CD that the record company said you could freely distribute yould cost more than a CD without that right. Presumably you make the economic choice that $17.99 is a fair price to pay for a CD without the right to distribute the music on the CD. It's not like their is some shrink-wrap EULA on a CD where you think that you are buying the full copyright and then SUPRISE all you get is a copy to listen to. This is all just part of the bargain.
Again, its not like any of this comes as a suprise to anyone. If you don't feel that the CD without the distribution right isn't worth $17.99, you don't buy it.
"And why does the publisher's right of control trump the consumer's rights of control?"
Well, it doesn't in this case, because the consumer NEVER HAD THE RIGHT to begin with when we are talking about distribution. The consumer isn't losing anything -- the consumer never paid for the right in the first place.
One of the reasons it (usually) costs more to BUY a house than RENT a house lies in the value of being able to sell the house. As a renter, you have ALL of the rights of the owner, with the exception of being able to sell the house to someone else -- that right is one that costs extra. Do you think a renter should have the right to sell the house? Not an exact analogy, but similar enough to make a point. Whenever you have a "bundle of rights" in something, you can generally choose which rights you want to sell (or rent) and which you want to keep for yourself. The law does not usually make you sell all of none of them.
"And what happens when the publishers, in their efforts to retain control inadvertantly, impact other consumer rights, weakly called "fair use," but more broadly, what ought to be my right as a consumer to manipulate, transform, transfer or otherwise with something I bought?"
"Retaining control" is a balancing act, and sometimes it tips to far one way or the other. It will generally correct itself if it gets too far out of whack -- at least we hope it will. If course, "too far" is the subject of much disagreement...
And as far as manipulate, etc., well, when you bought the CD, you bought the rights to sell, distribute or destroy THAT particular CD, as well as the right to play the music, but you did NOT purchase the rights to distribute or create other copies or to create derviative works. Now, if you had purchased the rights, and the record company tried to stop you, that would be one thing -- but you didn't buy the rights. You could, potentially -- you could go to ASCAP or BMI or the Harry Fox Agency and buy pretty much whatever rights you wanted -- but they would cost more than the $17.99, that's for sure.
"None of this even touches the problems a sibling poster notes about the artificial creation of scarcity copyright protection produces, given that, yes, reproduction of information has vanishing marginal cost, and, shitty as it may be to you, there is not m
Great post, but you apparently broke/. rule number something or other: information wants to be free! It can't be property!
Remember, this is/. You can't steal somthing intangible. You can't own ideas or concepts. Intellectual Property, especially patents, have never, ever done anything other than hinder creativity (I suppose we would have flying cars and cities under the sea and daily trips to the moon already if it wasn't for the damn patent system). If you make too much money ("too much" defined as some multiple of how much money the poster or AC has or projects he or she will have when he someday graduates from school and gets a job), then it is morally okay to not have to pay them for what you want (at least, as long as it is intangible). If you are a company, and you don't change your business plan to please the pirates, you don't care about your "customers."
Yeah, except everything that is remotely a "trade secret" will get subpoenaed and discovered under a protective order, which means only the judge and the lawyers will see the really interesting stuff...
"Legal databases, yep, that's certainly an issue. However if I were sued I wouldn't actually write the legal replies myself (even though I said I would I was hoping it would be easier for you to understand) I'd get one of my legal friends to do it for me. Why would they? Because they hate people who abuse the patent system just as much as I do."
Are you sure all of your friends would be willing to help out in this way? Remember, whenever they sign a document, they are putting THEIR licenses on the line if something isn't as it appears to be -- that's one reason why lawyers don't let their clients "help out" to try and reduce costs -- most of the time it is too much risk involved. Plus, there is a LOT of time involved here -- it's not just a few hours here and there.
Plus, if your friends work at law firms, they'll need to make sure that helping you doesn't cause a conflict of interest with another of their firm's clients -- creating such a conflict would not only get the associate fired, it could cost the firm millions. Furthermore, even if no conflicts exist today, how would you llike to be the associate that, because he helped his buddy write a couple of briefs against Megacorp, is the reason the firm can't represent Megacorp in a really huge matter? And yes, this sort of thing can and does happen. Finally, a firm's malpractice insurance generally really limits outside work by associates and partners because of this very issue.
And even if they work for firms, that legal research time has to be billed to someone -- it ain't free, even for the law firms, and I don't know of any firm that has unlimited access for a set fee.
But if you have friends that are willing to work for free, then maybe they would.
"Who would I have to depose exactly? I know I havn't specified anything about the case at all but presuming that it is basically Evil Mega Corporation claims that algorithm I used in Tiny Random Open Source Application is a violation of their patent and it simply isn't, who is there to depose? Myself?"
They would be the one deposing you and your expert(s). You would need to depose, say, all of the named inventors on the patents they are asserting against you, in order to figure out the scope of the claims, and in order to figure out if you have any invalidity or inequitable conducts assertions you could make. You'll need to depose their expert(s) to further nail down the scope of claims, and hopefully get something useful for a later cross-examination, if it comes to that. Plus there are probably others you might want to depose, depending on your defense strategy, like Megacorp's CTO, marketing guys, members of the technical staff, and so on.
"talk to the 10 lawyers I know and ask them to donate some time to write reply briefs or bow out and let the evil megacorp win? "
The problem isn't the reply briefs. Just about anyone with an ounce of intelligence and access to Findlaw or Google could draft a suitable answer to a complaint. What is more challenging is writing up your response to their motion for preliminary injunction or summary judgment -- that requires real legal research, and an in-depth understanding of the legal arguments (noninfringement, invalidity, unenforceability, inequitable conduct, misuse of patent, etc.) and the factual bases for those legal arguments.
Then you have to do claim constructions -- each side will need to come up with "constructions" for what the claims mean -- this requires a very in-depth analysis of the patents in suit and your allegedly infringing product, in order to generate constructions that, if the court accepts your version, allows your product not to infringe -- but to get the court to accept your side, you'll need to have some good factual and legal arguments to support your constructions. And you'll need to thoroughly understand THEIR constructions as well, in order to be able to rebut them in your Markman brief.
Just for an example, on a fairly small patent infringement case I am working
Well, for one thing, there are copying costs. Even at $0.05 per copy, that starts to add up when the other side asks you for a copy of EVERY document, email, note, etc., that was sent by or received by ANYONE who had ANYTHING to do with the patent, or the product is allegedly infringing the patent. That could be tens of thousands or hundreds of thousands of pages. We have a case we are working on now where the client is spending around $15,000 per MONTH on copying alone -- yes, it's a big case, but it is unbelievable how fast these costs can get out of hand.
And before you can send these documents over to the other side, you'll need to go through these docs to make sure that nothing is in their that shouldn't be going to the other side.
Unless you have access to a large law library and have lots and lots of spare time on your hands, you'll need access to legal databases to look up the latest caselaw to support your arguments. Those databases aren't super cheap. Hundreds of dollars per search on occassion.
You can't say things like "that's obvious" or "that's not a term of art" or "that is a term of art" and have anyone believe you, even if you are right -- you need to hire an "expert" to say those things, and those experts are going to charge many hundreds of dollars per hour to look over documents and come up with their "expert opinions."
Plus you have to depose people, you may have to travel to where they are or pay for them to come to you, you'll need to pay the court reporter to record the depo, maybe you'll want a videotape too. That all costs money.
And so on and so on. These are a couple of examples of non-manpower things to think about. And we haven't even got anywhere near trial, where you have to figure out how to display and get across info, etc.
And besides, you HAVE to hire people. First off, those thousands or tens of thousands or hundreds of thousands of pages of documents I mentioned above? Well, you are going to ask the other side for some pertinent memo as part of you case, and that memo is going to buried amongst a hundred thousand pages of similar-looking documents that you'll have to wade through to find it -- they are not going to tell you where it is.
And besides, even if you are a lawyer, no court is going to allow you to both a) be a lawyer and b) testify as a material witness in the same case.
The reason why manpower makes up a huge chunk of the cost in a patent infringement case is because there is a LOT of work to do. Companies pay these kinds of fees because there is usually a LOT on the line if they lose...
Unfortunately, you are probably right. Which means that if the "pirates" (for lack of a better word) are never going to stop, then the RIAA, MPAA and other organizations aren't going to either.
Personally, if I were offering tunes for a buck, and a bunch of folks said even if it were a penny they wouldn't pay, just out of spite, I would not only not lower my prices to a penny, but I would double, triple, or even quadruple (or whatever-tuple) my efforts to take legal action against everyone.
I hope that doesn't happen, but I bet it will...
And in case you haven't noticed, I don't think the RIAA is exactly reeling from all of the negative publicity over there legal activies, except here on Slashdot, the EFF and similarly-minded websites...
Exactly. Have the posts on here rip on the RIAA, saying they must change their distribution system or die, that they must give the users access to cheaply downloadable content.
Then iTunes comes along, and now we have access to cheap, downloadable content. Has that stopped (or even impacted) file sharing in any significant way? Has that stopped people from STILL complaining?
If this is the standard reaction -- if someone comes up with something, we'll crack it and still figure out a way to get it for free -- then I can totally see why the RIAA and others are pushing for more and more restrictions. Look, iTunes gives you what you want, and it still isn't good enough. Why should the RIAA and others believe that ANYTHING they do will ever be good enough?
"I am simply trying to make the point that the fact that something is codified in law does not make it right, and the fact that it is against the law does not make it wrong."
No flames. I would point out, though, that a law may not make something "right" or "wrong," it does make something "legal" or "illegal" until the law is changed.
And of course by "right" I mean "right" in the legal sense, not the moral outrage sense. When I say, you don't have the right, I mean you have no rights that you could enforce in a court of law.
Not to be pendantic, but people so like to harp on meanings and lose sight of the crux of the argument...
"Why should it be illegal for customers to respond to the RIAA's price gouging by circumventing the RIAA's expensive distribution channels?"
The thing to remember here is that neither you, nor any other consumer, has a RIGHT to purchase music, from the RIAA or anywhere else. You may really, really want to buy (or otherwise obtain) the music, but you don't have the right to demand that they sell it to you, and you don't have the right to demand at what price they sell it to you.
Could a music label sign, say U2, and refuse to sell CD's to anyone? It would be stupid of them to do it, and U2 probably wouldn't sign such a contract that would allow them to do it, but they could, legally -- and you would have no recourse. The record label culd also refuse to sell CD's to people with "Price" in their username. The point is, you don't have a RIGHT to purchase music, or and OBLIGATION to do so either. If you had the right to buy music, then you would have more of a cause for action because of high prices. Similarly if you had the obligation to buy music -- then for sure you would have a just cause to rail against high prices.
But railing against high prices because you want something that you think should be cheaper, well...
"Why should it be illegal for customers to respond to the RIAA's price gouging by circumventing the RIAA's expensive distribution channels?"
Why should it? I don't know. But the fact is that it is illegal, and will remain so until the law changes. If enough people want the law changed, it probably will be. Sure, the RIAA has the power now, but if enough voters got pissed off enough so that the republicrats in congress feared for their jobs, the laws could change. But for now, the law is what the law is.
"Must all customers forever be at the mercy of media congomerates?"
No. They could stop buying music and movies. They could go to clubs and shows, or listen to the radio, or purchase indie albums from labels and people not affiliated with the RIAA. But if you just gotta have the new Linkin Park CD, and want to own it legally, you've got a choice to make -- exercise your right as a consumer to hurt the RIAA in the only legal way you have, or admit to yourself that the CD is worth the $17.99 or whatever and pay it.
"P2P filesharing is a direct response to the price-fixing and unfair, unethical practices with which the RIAA/MPAA abuse their legal customers, and lawsuits are used to enforce these practices."
Why don't more people use the legal system the other way -- didn't everyone sign up to get their $20 or whatever from the CD price fixing class-action lawsuit a couple of years ago?
"The truth of the matter (from where I sit) is that the collective power of the consumer base will eventually force media conglomerates to reorganize their business model in such a way that best addresses their customers' needs. "
All well and good. But if you are going to resort to illegal means to do so, why do you cry foul when they use every legal means available to stop you?
"The internet and p2p filesharing has tipped the scales of influence back to the individual, and that is a good thing."
And how does it shift power to the "individual?"
"Without any power (a.k.a. choice), all the consumer can do is lay there and get fucked."
But consumers DO have a choice -- don't listen to music distributed under the auspices of the RIAA. Buy music produced in foreign countrys. Buy indie or local stuff. Make you own. Don't listen to music at all. Sure, none of those are as EASY as simply figuring out how to get a popular CD for free, but that is where your (legal) power lies.
If people continue to use illegal means to try and get the RIAA and others to change, honestly, which do you think is going to happen:
1) RIAA and MPAA roll over and let everyone freely share (legally) digital media, or
2) More and more increasingly Draconian methods to put an end to the freely shared (but illegally so) digital media.
"That's when all this so-called "piracy" and "theft" will cease to be an issue."
So, now that we can easily and inexpensively download music from iTunes, there are no more songs floating around the P2P networks? I mean, you got what you wanted, so shouldn't the piracy stop, at least wrt music?
"Publication" is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.
To perform or display a work "publicly" means--
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
So, I guess if you can prove that your "50 friends" is not "a substantial number of persons outside of a normal circle of a family and its social acquaintances" then bullshit it is, otherwise, bullshit it is not.
Further, "privately-owned" doesn't figure into this at all. See, for example, the West Annotated Federal Code for 17 U.S.C. 101:
"Performance of copyrighted musical compositions in defendant's private club without permission from plaintiffs or representatives violated Federal Copyright Act, although defendant's establishment was classified as private club under Kansas law, as musical compositions were "publicly" performed as defined under Act. Ackee Music, Inc. v. Williams, D.Kan.1986, 650 F.Supp. 653"
So yes, there are legal limits on how many people you can invite over.
Don't shoot the messenger -- I don't make the rules, I only earn my living from them...
"If your buddy sent you an email with every movie and album produced this year, would you delete it?"
With the download speed I have at home, I would never get it in the first place...
But the answer is, I probably would. I don't watch movies or listent to music on my computer, and I would rather just buy a DVD or CD then have to worry about burning my own DVD's and CD's to play elsewhere. Admittedly, I am in a position where the cost of a DVD or CD isn't really an issue, but the fact is, I don't really watch all that many movies anyway, so buying or renting a few DVD's just isn't that big of a deal.
"They should change their business model because it will become unsustainable soon."
I agree that if their current business model becomes unsustainable, they will probably change it, and should change it -- its the right thing to do for a for-profit organization. But this whole "we're gonna download whether they like or not, they need to change" mentality, where the implication is that you will stop an illegal activity if they promise to do something you want, sounds kinda like blackmail to me.
Slashdot Mirror
You just can't win with some people. Yeah, we could go into the Sudan -- but then we wouldn't be acting under the auspices of the UN -- who are already there, handling "peacekeeping" activities -- and those same people who deride us for NOT being in the Sudan would be deriding us for being imperialistic by sending our troops to the Sudan...
Just like the UN did nothing in Rwanda -- oh yeah, they are their now, holding "war crimes" tribunals -- but where were they during the slaughter? Where was the UN during the Serbian episode? That was a NATO operation, and once again, mostly American military.
If yoou want the U.S. to go and put troops in every hot spot in the world, then don't bash us when we actually do, or when we make a decision on out own -- these are U.S. troops, paid for by the U.S., not "world" troops. If you think the UN should be running these missions, fine, but then you should be questioning why the UN does (or doesn't do) what is does (or doesn't)...
I know about online shoppng -- but since the parent was complaining about mail-order being too slow, I assumed that online shopping wouldn't provide the immediacy he was looking for either...
"Now maybe I'm just being a bigot but I don't think you have to have a passion for the law to be a good lawyer, you just need to have a passion for money."
Not being a bigot, but maybe a bit elitist or close-minded.
Seriously, there really is nothing special about computer programming -- ANYTHING that you want to excel at you have to be passionate about, whether it is computer programming, baseball, the law, whatever. Anyone with a minimum of brains can probably be an okay computer programmer, or an okay lawyer, or an okay whatever -- but pretty much any time you want to excel, you've got to be passionate about it, because you've got to keep practicing, and learning new stuff, and retraining yourself.
I've been a researcher, I've been a programmer, I've been a manager, and now I'm a lawyer. I was passionate (for a while, at least) about research, and I was good at it. I tried programming, I tried working as a manager, and while I was competant at both, I new pretty rapidly that I wasn't passionate about either, so I moved on. Now I'm a lawyer, and I am passionate about something again -- I love what I do (at least as much as anyone loves their job, I guess!). But the point is, if you are not passionate about what you do -- or at lest willing to fake it! -- you may be somewhat successful, but you'll never excel.
Do you sit there and stare into your refrigerator when you are out of beer too, and curse the supermarket industry for not providing a way to keep your fridge stocked without you having to leave your computer?
I'm not buying another bag of m&m's unless they get rid of the brown ones...
Amen, brother!
"I see that argument a lot. Does that mean if I put out a CD and don't want Jews buying it, I can do that? After all, it's my content and I can do as I see fit. What if Bill Gates decides that he doesn't want Windows being sold to blacks? It's his content, he can distribute it as he sees fit."
There isn't any law that would stop you or Bill Gates in this matter -- the Government is not allowed to behave in a racist manner, and sometime we don't allow certain private businesses that are providing public services (like employers, and certain other regulated industries) to behave in a racist manner, but there is not law that says YOU or any other private citizen cannot behave in a racist manner. You, as a private individual or a private company, generally have the right to refuse service to anyone. And for any reason, I might add.
"And don't give me that crap about "well THAT'S racism and therefore wrong". Just because there's an easily identifyable and socially "bad" -ism doesn't make it any different."
You are right, it doesn't make any difference.
"The fact is I can't even open a 7-11 and sell to only whites"
But the reason has more to do with the fact that this is considered a highly-regulated industry, and there is significant government involvment, and that stores that are generally open to the public have some regulations that, say, a private club wouldn't have.
"nor can I tell stores to sell my CD to only whites"
That you could do -- as a distributor, you can decide who you want to sell to, and put some restrictions on downstream sales (I am assuming you are talking about trademarked goods here) -- you probalby wouldn't get anyone to carry your work with such a restriction, but you could, in theory, do this.
But you certainly could sell them over the internet or something, or by mail, and refuse to sell to blacks, or whites, or whomever you want. Once again, it's not illegal to be a racist.
"The artist surrenders control to the publisher."
And in return, they get paid (potentially) and get other "consideration" for their contract. Speaking in economic terms, if the value to the artist of getting the record company to produce and sell their music is greater to them than having control over that music, then it is a rational decision to turn over control in order to gain a (perhaps perceived) greater benefit. Nobody is forcing these artists to give up control of their work -- they make a bargain.
"The publisher surrenders control, partially, to the consumer."
Again, you presumably make the economic decision that having a CD you can play in your car is more valuable to you than the $17.99 or whatever in your pocket.
"The part they do not surrender is, at least according to the law, the right to distribute. But ought they be able to withhold that right? "
Why shouldn't they be able to? Presumably the price of a CD is based in part on the fact that the right to freely distribute is not included. It would be safe to say that a CD that the record company said you could freely distribute yould cost more than a CD without that right. Presumably you make the economic choice that $17.99 is a fair price to pay for a CD without the right to distribute the music on the CD. It's not like their is some shrink-wrap EULA on a CD where you think that you are buying the full copyright and then SUPRISE all you get is a copy to listen to. This is all just part of the bargain.
Again, its not like any of this comes as a suprise to anyone. If you don't feel that the CD without the distribution right isn't worth $17.99, you don't buy it.
"And why does the publisher's right of control trump the consumer's rights of control?"
Well, it doesn't in this case, because the consumer NEVER HAD THE RIGHT to begin with when we are talking about distribution. The consumer isn't losing anything -- the consumer never paid for the right in the first place.
One of the reasons it (usually) costs more to BUY a house than RENT a house lies in the value of being able to sell the house. As a renter, you have ALL of the rights of the owner, with the exception of being able to sell the house to someone else -- that right is one that costs extra. Do you think a renter should have the right to sell the house? Not an exact analogy, but similar enough to make a point. Whenever you have a "bundle of rights" in something, you can generally choose which rights you want to sell (or rent) and which you want to keep for yourself. The law does not usually make you sell all of none of them.
"And what happens when the publishers, in their efforts to retain control inadvertantly, impact other consumer rights, weakly called "fair use," but more broadly, what ought to be my right as a consumer to manipulate, transform, transfer or otherwise with something I bought?"
"Retaining control" is a balancing act, and sometimes it tips to far one way or the other. It will generally correct itself if it gets too far out of whack -- at least we hope it will. If course, "too far" is the subject of much disagreement...
And as far as manipulate, etc., well, when you bought the CD, you bought the rights to sell, distribute or destroy THAT particular CD, as well as the right to play the music, but you did NOT purchase the rights to distribute or create other copies or to create derviative works. Now, if you had purchased the rights, and the record company tried to stop you, that would be one thing -- but you didn't buy the rights. You could, potentially -- you could go to ASCAP or BMI or the Harry Fox Agency and buy pretty much whatever rights you wanted -- but they would cost more than the $17.99, that's for sure.
"None of this even touches the problems a sibling poster notes about the artificial creation of scarcity copyright protection produces, given that, yes, reproduction of information has vanishing marginal cost, and, shitty as it may be to you, there is not m
Great post, but you apparently broke /. rule number something or other: information wants to be free! It can't be property!
/. You can't steal somthing intangible. You can't own ideas or concepts. Intellectual Property, especially patents, have never, ever done anything other than hinder creativity (I suppose we would have flying cars and cities under the sea and daily trips to the moon already if it wasn't for the damn patent system). If you make too much money ("too much" defined as some multiple of how much money the poster or AC has or projects he or she will have when he someday graduates from school and gets a job), then it is morally okay to not have to pay them for what you want (at least, as long as it is intangible). If you are a company, and you don't change your business plan to please the pirates, you don't care about your "customers."
Remember, this is
What!?! You mean having Linux on your desktop and hating M$ doesn't make you an expert at complex IP litigation? Say it isn't so!
Yeah, except everything that is remotely a "trade secret" will get subpoenaed and discovered under a protective order, which means only the judge and the lawyers will see the really interesting stuff...
"Legal databases, yep, that's certainly an issue. However if I were sued I wouldn't actually write the legal replies myself (even though I said I would I was hoping it would be easier for you to understand) I'd get one of my legal friends to do it for me. Why would they? Because they hate people who abuse the patent system just as much as I do."
Are you sure all of your friends would be willing to help out in this way? Remember, whenever they sign a document, they are putting THEIR licenses on the line if something isn't as it appears to be -- that's one reason why lawyers don't let their clients "help out" to try and reduce costs -- most of the time it is too much risk involved. Plus, there is a LOT of time involved here -- it's not just a few hours here and there.
Plus, if your friends work at law firms, they'll need to make sure that helping you doesn't cause a conflict of interest with another of their firm's clients -- creating such a conflict would not only get the associate fired, it could cost the firm millions. Furthermore, even if no conflicts exist today, how would you llike to be the associate that, because he helped his buddy write a couple of briefs against Megacorp, is the reason the firm can't represent Megacorp in a really huge matter? And yes, this sort of thing can and does happen. Finally, a firm's malpractice insurance generally really limits outside work by associates and partners because of this very issue.
And even if they work for firms, that legal research time has to be billed to someone -- it ain't free, even for the law firms, and I don't know of any firm that has unlimited access for a set fee.
But if you have friends that are willing to work for free, then maybe they would.
"Who would I have to depose exactly? I know I havn't specified anything about the case at all but presuming that it is basically Evil Mega Corporation claims that algorithm I used in Tiny Random Open Source Application is a violation of their patent and it simply isn't, who is there to depose? Myself?"
They would be the one deposing you and your expert(s). You would need to depose, say, all of the named inventors on the patents they are asserting against you, in order to figure out the scope of the claims, and in order to figure out if you have any invalidity or inequitable conducts assertions you could make. You'll need to depose their expert(s) to further nail down the scope of claims, and hopefully get something useful for a later cross-examination, if it comes to that. Plus there are probably others you might want to depose, depending on your defense strategy, like Megacorp's CTO, marketing guys, members of the technical staff, and so on.
"talk to the 10 lawyers I know and ask them to donate some time to write reply briefs or bow out and let the evil megacorp win? "
The problem isn't the reply briefs. Just about anyone with an ounce of intelligence and access to Findlaw or Google could draft a suitable answer to a complaint. What is more challenging is writing up your response to their motion for preliminary injunction or summary judgment -- that requires real legal research, and an in-depth understanding of the legal arguments (noninfringement, invalidity, unenforceability, inequitable conduct, misuse of patent, etc.) and the factual bases for those legal arguments.
Then you have to do claim constructions -- each side will need to come up with "constructions" for what the claims mean -- this requires a very in-depth analysis of the patents in suit and your allegedly infringing product, in order to generate constructions that, if the court accepts your version, allows your product not to infringe -- but to get the court to accept your side, you'll need to have some good factual and legal arguments to support your constructions. And you'll need to thoroughly understand THEIR constructions as well, in order to be able to rebut them in your Markman brief.
Just for an example, on a fairly small patent infringement case I am working
Well, for one thing, there are copying costs. Even at $0.05 per copy, that starts to add up when the other side asks you for a copy of EVERY document, email, note, etc., that was sent by or received by ANYONE who had ANYTHING to do with the patent, or the product is allegedly infringing the patent. That could be tens of thousands or hundreds of thousands of pages. We have a case we are working on now where the client is spending around $15,000 per MONTH on copying alone -- yes, it's a big case, but it is unbelievable how fast these costs can get out of hand.
And before you can send these documents over to the other side, you'll need to go through these docs to make sure that nothing is in their that shouldn't be going to the other side.
Unless you have access to a large law library and have lots and lots of spare time on your hands, you'll need access to legal databases to look up the latest caselaw to support your arguments. Those databases aren't super cheap. Hundreds of dollars per search on occassion.
You can't say things like "that's obvious" or "that's not a term of art" or "that is a term of art" and have anyone believe you, even if you are right -- you need to hire an "expert" to say those things, and those experts are going to charge many hundreds of dollars per hour to look over documents and come up with their "expert opinions."
Plus you have to depose people, you may have to travel to where they are or pay for them to come to you, you'll need to pay the court reporter to record the depo, maybe you'll want a videotape too. That all costs money.
And so on and so on. These are a couple of examples of non-manpower things to think about. And we haven't even got anywhere near trial, where you have to figure out how to display and get across info, etc.
And besides, you HAVE to hire people. First off, those thousands or tens of thousands or hundreds of thousands of pages of documents I mentioned above? Well, you are going to ask the other side for some pertinent memo as part of you case, and that memo is going to buried amongst a hundred thousand pages of similar-looking documents that you'll have to wade through to find it -- they are not going to tell you where it is.
And besides, even if you are a lawyer, no court is going to allow you to both a) be a lawyer and b) testify as a material witness in the same case.
The reason why manpower makes up a huge chunk of the cost in a patent infringement case is because there is a LOT of work to do. Companies pay these kinds of fees because there is usually a LOT on the line if they lose...
Well, I'm not sure I would call IP or being an IP lawyer "exciting," but its certainly interesting, and really not a bad job at all.
I guess I equate "exciting" with stuff like motorcycle racing or something, not trying to traverse 103 rejections...
As to whether I make any claims to normalcy or not, I'll leave that question open!
Unfortunately, you are probably right. Which means that if the "pirates" (for lack of a better word) are never going to stop, then the RIAA, MPAA and other organizations aren't going to either.
Personally, if I were offering tunes for a buck, and a bunch of folks said even if it were a penny they wouldn't pay, just out of spite, I would not only not lower my prices to a penny, but I would double, triple, or even quadruple (or whatever-tuple) my efforts to take legal action against everyone.
I hope that doesn't happen, but I bet it will...
And in case you haven't noticed, I don't think the RIAA is exactly reeling from all of the negative publicity over there legal activies, except here on Slashdot, the EFF and similarly-minded websites...
Well then, what is the right price? What price would you pay where it would be worth it to you to own a legal copy of a song?
Exactly. Have the posts on here rip on the RIAA, saying they must change their distribution system or die, that they must give the users access to cheaply downloadable content.
Then iTunes comes along, and now we have access to cheap, downloadable content. Has that stopped (or even impacted) file sharing in any significant way? Has that stopped people from STILL complaining?
If this is the standard reaction -- if someone comes up with something, we'll crack it and still figure out a way to get it for free -- then I can totally see why the RIAA and others are pushing for more and more restrictions. Look, iTunes gives you what you want, and it still isn't good enough. Why should the RIAA and others believe that ANYTHING they do will ever be good enough?
Sweden != Norway != USA
... information are what the web is about."
(only putting that in because it seems like I get nailed everytime I make a similar type of statement!)
"The people are not forced to visit his webpage.
So they must activily search it out to find the information...
People are not forced to buy drugs either, but when they seek out someone to help them buy drugs, that guy can get in trouble.
Slashdot should change the login "Anonymous Coward" to "Anonymous Strawman Creator" or something...
"I am simply trying to make the point that the fact that something is codified in law does not make it right, and the fact that it is against the law does not make it wrong."
No flames. I would point out, though, that a law may not make something "right" or "wrong," it does make something "legal" or "illegal" until the law is changed.
And of course by "right" I mean "right" in the legal sense, not the moral outrage sense. When I say, you don't have the right, I mean you have no rights that you could enforce in a court of law.
Not to be pendantic, but people so like to harp on meanings and lose sight of the crux of the argument...
One more thing, in response to:
"Why should it be illegal for customers to respond to the RIAA's price gouging by circumventing the RIAA's expensive distribution channels?"
The thing to remember here is that neither you, nor any other consumer, has a RIGHT to purchase music, from the RIAA or anywhere else. You may really, really want to buy (or otherwise obtain) the music, but you don't have the right to demand that they sell it to you, and you don't have the right to demand at what price they sell it to you.
Could a music label sign, say U2, and refuse to sell CD's to anyone? It would be stupid of them to do it, and U2 probably wouldn't sign such a contract that would allow them to do it, but they could, legally -- and you would have no recourse. The record label culd also refuse to sell CD's to people with "Price" in their username. The point is, you don't have a RIGHT to purchase music, or and OBLIGATION to do so either. If you had the right to buy music, then you would have more of a cause for action because of high prices. Similarly if you had the obligation to buy music -- then for sure you would have a just cause to rail against high prices.
But railing against high prices because you want something that you think should be cheaper, well...
"Why should it be illegal for customers to respond to the RIAA's price gouging by circumventing the RIAA's expensive distribution channels?"
Why should it? I don't know. But the fact is that it is illegal, and will remain so until the law changes. If enough people want the law changed, it probably will be. Sure, the RIAA has the power now, but if enough voters got pissed off enough so that the republicrats in congress feared for their jobs, the laws could change. But for now, the law is what the law is.
"Must all customers forever be at the mercy of media congomerates?"
No. They could stop buying music and movies. They could go to clubs and shows, or listen to the radio, or purchase indie albums from labels and people not affiliated with the RIAA. But if you just gotta have the new Linkin Park CD, and want to own it legally, you've got a choice to make -- exercise your right as a consumer to hurt the RIAA in the only legal way you have, or admit to yourself that the CD is worth the $17.99 or whatever and pay it.
"P2P filesharing is a direct response to the price-fixing and unfair, unethical practices with which the RIAA/MPAA abuse their legal customers, and lawsuits are used to enforce these practices."
Why don't more people use the legal system the other way -- didn't everyone sign up to get their $20 or whatever from the CD price fixing class-action lawsuit a couple of years ago?
"The truth of the matter (from where I sit) is that the collective power of the consumer base will eventually force media conglomerates to reorganize their business model in such a way that best addresses their customers' needs. "
All well and good. But if you are going to resort to illegal means to do so, why do you cry foul when they use every legal means available to stop you?
"The internet and p2p filesharing has tipped the scales of influence back to the individual, and that is a good thing."
And how does it shift power to the "individual?"
"Without any power (a.k.a. choice), all the consumer can do is lay there and get fucked."
But consumers DO have a choice -- don't listen to music distributed under the auspices of the RIAA. Buy music produced in foreign countrys. Buy indie or local stuff. Make you own. Don't listen to music at all. Sure, none of those are as EASY as simply figuring out how to get a popular CD for free, but that is where your (legal) power lies.
If people continue to use illegal means to try and get the RIAA and others to change, honestly, which do you think is going to happen:
1) RIAA and MPAA roll over and let everyone freely share (legally) digital media, or
2) More and more increasingly Draconian methods to put an end to the freely shared (but illegally so) digital media.
"That's when all this so-called "piracy" and "theft" will cease to be an issue."
So, now that we can easily and inexpensively download music from iTunes, there are no more songs floating around the P2P networks? I mean, you got what you wanted, so shouldn't the piracy stop, at least wrt music?
17 U.S.C. 101:
"Publication" is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.
To perform or display a work "publicly" means--
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
So, I guess if you can prove that your "50 friends" is not "a substantial number of persons outside of a normal circle of a family and its social acquaintances" then bullshit it is, otherwise, bullshit it is not.
Further, "privately-owned" doesn't figure into this at all. See, for example, the West Annotated Federal Code for 17 U.S.C. 101:
"Performance of copyrighted musical compositions in defendant's private club without permission from plaintiffs or representatives violated Federal Copyright Act, although defendant's establishment was classified as private club under Kansas law, as musical compositions were "publicly" performed as defined under Act. Ackee Music, Inc. v. Williams, D.Kan.1986, 650 F.Supp. 653"
So yes, there are legal limits on how many people you can invite over.
Don't shoot the messenger -- I don't make the rules, I only earn my living from them...
"If your buddy sent you an email with every movie and album produced this year, would you delete it?"
With the download speed I have at home, I would never get it in the first place...
But the answer is, I probably would. I don't watch movies or listent to music on my computer, and I would rather just buy a DVD or CD then have to worry about burning my own DVD's and CD's to play elsewhere. Admittedly, I am in a position where the cost of a DVD or CD isn't really an issue, but the fact is, I don't really watch all that many movies anyway, so buying or renting a few DVD's just isn't that big of a deal.
"They should change their business model because it will become unsustainable soon."
I agree that if their current business model becomes unsustainable, they will probably change it, and should change it -- its the right thing to do for a for-profit organization. But this whole "we're gonna download whether they like or not, they need to change" mentality, where the implication is that you will stop an illegal activity if they promise to do something you want, sounds kinda like blackmail to me.