I've never seen any caselaw on this point, but since the point of an archival backup is to continue to use the media after the original is no longer useable, I suspect that your continued use of the materials would be lawful, although without the original disc, maybe hard to prove. Maybe a police report would do the trick. The "transfer" provisions all discuss voluntary transfers, so I suspect that a stolen disc wouldn't count. But you are right, these laws are pretty crazy, so who knows.
Just a comment, that section only applies to manufacturers of devices and media, it does not apply to the end user who may use them. This section is a result of the Betamax case, Universal v. Sony -- it basically lets Sony make DAT recorders and the like without being sued for infringement, but it doesn't indemnify the users of said DAT recorder if they are using the DAT recorder to make unlawful copies of a copyrighted work.
The restrictions on the creation and use of archival copies is real, and if you violate those restrictions it's really illegal. The case that established the concept of the archival backup and expressed its limitations is Vault Corp. v. Quaid Software, Ltd., 847 F.2d 255 (5th Cir. 1988). The Quaid ruling was extended to audio files, and a good review of the limitations on copying and backing up audio can be found in Recording Indus. Ass'n of Am. v. Diamond Multimedia Sys., 180 F.3d 1072 (9th Cir. 1999).
I fail to see how the RIAA can convince any court that the targets of their lawsuits broke the law without the shadow of a doubt.
They don't have to. "Beyond a reasonable doubt" is the criminal standard of proof -- in civil court, where this is, you only have a "preponderance of the evidence" standard, which is effectively "more likely than not." If you can show that someone at a particular IP address illegally downloaded copyrighted materials, and hey, you own that IP address, that is probably sufficient to show that, more likely than not, it was you.
You can put up a defense, of course -- but you need to do more than raise a "reasonable doubt." You need to prove to the jury that, more likely than not, it was someone else who did it. That's why you would need to give up logs or MAC addresses or whatever you might have to prove that it was someone else, not you.
I agree with what you are saying, to a point. But, how would that play in say an apartment where there may be one common IP address for multiple adults? There has to be more basis for the target of the suit than JUST IP address. In this day and age of 'shared' IP addresses (or even spoofed ones), an IP address is not an identification.
In your hypo, if the RIAA obtained an IP address in a home where there are multiple adults, there are a couple of things the RIAA could do. First, it could just sue the "owner" of the IP address, and if the RIAA could prove it's case against the owner, then the burden would shift to the owner to prove that "hey, it wasn't me, it was my roommate!" Maybe that would be easy to prove, who knows, it would depend on the actual facts of the situation. In a criminal case, not knowing exactly who did something could be fatal to the case -- but here, in civil court, with only a "more likely than not" burden of proof, it could be easy to "prove" that the owner did it (you have his IP address, you have proof the he owns it, you have proof that he unlawfully downloaded copyrighted materials). Think about it -- if you found infringing materials passing through an IP address that a particular person owned, would your first inclination be "he did it" or "somebody must have hacked into his system to do it?" Since most people would probably believe the former, that's "more likely than not."
Once the RIAA proves "more likely than not," it's up to the defendant to not just speculate that it was someone else, but to prove it. If he has some evidence that the IP address was spoofed, or some evidence that one of his roommates did it, then maybe he can prove his defense. But he can't just rely on "you don't know who did it" -- that's just not how the court system works. If the RIAA can prove that he did it, he needs to prove (by the same preponderance standard) that he didn't do it -- if he can do that, he wins.
Now, if all of the roommates share ownership of the IP address, the RIAA still only has to prove that at least one of the owners infringed. If they can do that, they can hold all of the owners "joint and severally" liable for the infringement. If one of the owners rats out his friends, and has evidence to back it up, he might get away from any liability. But, in this case, the RIAA doesn't have to prove which of the owners did the infringing -- they only have to show that at least one of them did, and then it's up to the group found liable to figure out who is going to pay for it.
BTW, this works in criminal cases too, although the burden of proof is a lot higher. If 5 people are sitting around a bag of pot when the cops bust in, all five could be convicted of possession unless somebody was able to prove that there was only one owner of the pot, or, at least, that THEY were not an owner of the pot. There usually isn't safety in numbers -- like the Billy Joel song goes, sometimes "you'll all go down together."
There's nothing special about the IP address, I only used that because the parent post did. Anything that can identify the location of the downloading -- be it an IP address, a mailing address, smoke signals, whatever -- can be used by the plaintiff to at least point out where the infringement occurred. Is that enough to "prove" that the defendant infringed -- who knows, that's a question for the jury (or the judge, in a bench trial) -- but, since the burden is really "more likely than not," it may be sufficient. All the RIAA needs to show is some locational evidence -- maybe an IP address, maybe something else -- that links the infringement to the defendant, and that may be sufficient to meet their burden. At that point, then the defendant has to prove, by the same preponderance standard, that it wasn't her, but someone else. The burden flips at the point where the RIAA "proves" their side of the case -- that is is more likely than not that the defendant infringed.
In reality, there is no such tipping point -- in court, the plaintiff makes their case, the defendant tries to prove up any defenses they might have along with poking holes in the plaintiff's case, and then the judge or jury wieghs everything and makes a decision. If both the plaintiff and defendant "prove" their sides, the defendant wins. If the plaintiff proves their side but the defendant doesn't, plaintiff wins. If plaintiff fails to prove their side, defendant wins regardless of whether or not they prove their side.
Especially when, under current copyright law, they would probably lose anyway, then they are out the legal fees AND the costs, which are probably bigger now...
This would almost work, except for one thing -- while it is indeed legal to sell a partial ownership in a CD you own, and it is also legal to make an archival copy, or copies, of a CD, the problem is that under the laws, you cannot have an archival copy of the CD separately from the actual CD itself. In other words, you could do this, make 100 "archival" copies, but to keep it legal, whoever actually had in their possession the original CD is also the only one that can lawfully have possession of the archival copies.
There were a few cases on this where video rental places wanted to keep pristine their originals, and rent out the backup copies. Even if done on a one-to-one basis, this isn't legal, because when the physical possession of the original CD is transferred, any archival backups (in any form) must either be transferred with the CD or destroyed. It doesn't matter that you are all owners -- the point of an archival bakcup is so that you don't have to go out and buy a new CD when the original gets destroyed, not so that you can listen to the CD at two different places at the same time.
You are close here. You've got the burden of proof correct -- more likely than not, or preponderance of the evidence -- but the RIAA does have a burden of proof, they have to prove their case or they lose. The burden is lower than in a criminal case, but the burden of proof is still their.
Now, the defendant also has a burden of proof -- they have to prove, again by a preponderance of the evidence, and defenses they intend to rely on. So if the mom in this case tries to defend herself by saying it wasn't her, she has to prove (preponderance) that it wasn't her -- she doesn't get a free pass.
Bzzt. Try again. The defense has no burden of proof. The plaintiff (or prosecution, in criminal cases) does.
That's not correct. The plaintiff in this case has the burden of proof to prove that the person (or their IP address) did download the offending materials. If they can't prove that beyond a preponderance of the evidence (more likely than not), then the defense wins. But if the RIAA CAN prove that the defendant's IP address was used to download infringing materials -- and that should be easy, because they needed that info to figure out who to sue in the first place anyway -- then it's up to the defendant to PROVE that it was someone else, and not her.
Yes, the plaintiff has to prove up their side of the case, but the defendant also has to prove up any defenses they want to throw up as well. The court just doesn't take the defense's word for it -- think about it, if the defense didn't have to prove anything, your legal fees would be quite low because you would need a lawyer. The plaintiff would prove up their case, you'd say "sorry, wasn't me" and that would be it. But that's not the way it works -- the defendant does have to prove their defenses.
The problem with your defense is, the RIAA will need to show -- by a preponderance of the evidence, more likely than not -- that the infringement occured at your IP address. At that point, when you say, "it wasn't me, it was somebody stealing my bandwidth," the burden then shifts to YOU to prove, by a preponderance of the evidence, that it was somebody else and not you that did the infringing. You'll have to come up with some way to prove that somebody else was doing the infringing to prevail on your defense. Who knows, it might work, but it's more complicated than trying to obfuscate the real infringer -- you need to have some proof that it wasn't you for the court to buy it.
Did you notice where I suggested that the patent system, rather than being scrapped, be modified to have an affirmative defense of independent development?
Well, that's one idea, but I'm not sure that it's the best idea. The problem is, a patent must disclose the "best mode" or operation -- even though the patent drafters attempt to obfuscate the best mode in their application, the fact is most patents, once published, contain enough information to give a considerable head start to anyone else. In fact, that's the "tradeoff" -- the government grants you a temporary monopoly in trade for you coughing up the details of how your invention works to the public. Further, most patent applications are published after 18 months, long before the patent actually issues -- so where do you start the timeline for "independent development?" Once the application is published, another company has access to the inventor's "best mode," and will have a considerable head start. Maybe if you set the "independent development" clock so that you had to be working on an invention prior to the application being published -- but then, what would qualify as "independent development?" If I am just sort of messing around with a GUI, see your application, then implement your invention, is my earlier messing around sufficient to qualify as "independent development?" While your idea appears sound, it just seems like it would be just as complicated to prove "independent development" as it would to prove any of the other defenses to infringement (noninfringement, invalidity, unenforceability, inequitable conduct).
I think some changes need to be made to the patent system, but I'm not sure that this sort of defense would really add much to the equation.
Besides, like I noted in my post, if your system is so complex or time-consuming that any reverse-engineering would take as much or nearly as much time and effort to implement as coming up with the idea from scratch, then maybe in your case you don't need the patent protection anyway!
Any law system which requires someone specifically trained to be able to properly defend one's interests in the court is broken, badly.
I agree, in principle. But, even though I could, if I took enough time, repair the pipes in my house, or repair the electrical system in my car, I prefer to have someone who is specifically trained in such repairs to do them. It's more efficient to have an someone who is trained in such repairs to do them. The law is really no different -- it's not that hard to learn enough law to defend yourself if you needed to, but its likely more efficient to simply hire an expert. The courts allow you to defend yourself, or pursue a case yourself, so you could learn the law and have a go at it yourself if you really wanted to take the time to educate yourself.
I know this isn't exactly the point you were driving at, but I think it's a reasonable argument. Of course, dealing with your rights being much more important that dealing with your plumbing is a valid counterargument...
Law should be short, simple, and concise, so that everyone - every single able individual - can understand it in its entirety.
Again, I agree in principle. But when you limit the law to short, concise, simple rules, you will either have to have a gazillion of them, to cover everything we want to, or you allow a lot of potentially harmful activity to occur because you don't have laws against them. Plus, such concise rules will inherently have no flexibility in them. This makes it easy to determine if what you are doing is right or wrong, but leaves no room to let someone off the hook for doing the wrong thing for the right reason. That's one of the great advantages of our "common law" system -- it's flexible, and although there is uncertainty in some cases, it also allows the law to extend to cover things when necessary, and can be pulled back to allow other things if such a result is a fair result. It's not perfect, but then, no system ever will be completely fair and perfect.
Current patent law really only serves the really big companies.
It may seem that way, but it's not really true in practice. There are numerous firms that will take a patent infringement case on contingency these days, which makes it a lot easier for small companies or individual inventors to fight off even massive companies. And it does happen -- the firm I work for a year or two ago helped a client settle a case with an individual inventor who was going around gaining multi million dollar licensing agreements from various big players in the industry, because he had a righteous patent on a fundamental technology.
You don't hear much about the mom-and-pop companies or individual inventors suing other small companies (or even big companies), but it happens a lot more than you might image. Not every patent infringement case is between IBM and Microsoft, or whatever two behemoths you want to discuss. If anything, individual inventors or small companies are MORE likely to engage in litigation to protect their patents, copyrights, trade secrets and trademarks than are big companies -- the big companies usually just end up in cross-licensing agreements, it's the little guys that often end up in court.
Even if their competitors copy the fruits of their research, one still had first-mover advantage in applying it first.
But did the research and development for the "first-mover" come free? Who cares who got something first -- if I can freeload off of the "first-mover" and not have to do my own research and development, I can pass the savings on to my customers, who will buy my products because I can sell them cheaper.
Yes, this is good for consumers, because it tends to drive prices down to their free market level quickly. However, who then is going to pay for the R&D if they are unable to recoup their costs via above market pricing? What incentive is there for any company to invest in R&D if a freeloader can then come in and undercut your prices because they didn't have to pay for the R&D?
Now, if it is very difficult to reverse-engineer your advantage, then fine, maybe you don't really need the patent protection, because you essentially have a "natural" monopoly. But many inventions are easily reverse-engineered -- look at any patent that gets brought up on this board, and how quick everyone is to say that it's obvious -- sure it's obvious, after someone else has figured out how to do it.
That's the point of the incentive -- not so that we ensure that companys make profits, but to incentivize R&D by keeping freeloaders from driving down prices before the company that actually paid for the R&D can recoup their costs and make a profit.
We've had patents for 200 years now, and haven't fallen behind yet...
Also, most every country has their own patent system in place, and with the Patent Coorperation Treaty, it's relatively simple (albeit expensive) to get patent protection in many different countries simultaneously. And with the rise of the European patent, it will be even easier to obtain patent protection in numerous countries.
But you are right, you can't enforce a U.S. patent anywhere but the U.S.
I fail to see a basic difference between this and using DeCSS to view a DVD on a unsupported platform.
The big difference between using DeCSS and this case is that in this case, the owner of the materials figured out for themselves how to break the protections in the code. The DMCA prohibits the distribution of methods for breaking copy protections, but it doesn't prohibit you, an individual, from figuring out how to do it yourself. If you could figure out DeCSS on your own, you are free to use it on your own system -- but you can't distribute the information without running afoul of the DMCA provisions in the copyright code, and you are not allowed to purchase or otherwise obtain tools or methods for cracking copy protection from others.
Basically, if you've got the skills to do it yourself, you can crack copy protection without running afoul of the copyright code. If you need help, or give help to anyone else, that's where you get into trouble.
Wait just one second. If the RIAA can collect royalties because caching is considered recording, how do radio stations get away with time shifting their broadcaast.
For one thing, copyright law specifically gives radio stations the right to do this. See 17 U.S.C. 112.
why shouldn't everyone but the US fear the country with the highest number of unprovoked first-strike wars in its history have it?
So, how do you define "history?" Or "wars?" Or "unprovoked?" I guess you could come up with definitions of those terms where the U.S. ends up the winner, but I suspect that there are other, equal as valid (or maybe even better) definitions of those terms that would end up with the UK on top. Or France. Or any of the other "colonial" powers.
Current law extends some copyrights to the author's lifetime plus ninety years. Current law protects "work for hire" more than work you do for yourself. Current law doesn't limit copyright protection once the work is no longer owned by its creator. It is not balanced and blatantly designed to turn information into a commodity.
That's not really true. The "life + 70 years" for the author doesn't change when the copyright gets sold -- even to a big company -- the term is still "life of the author + 70 years." When a work is created by someone using their real name, the term is their life + 70, not matter who owns the copyrights or how many times it changes ownership.
Now, for a "work for hire," the company doesn't really have a lifetime, so the copyright term is the longer of 95 years from first publication or 120 years from creation, and again, those terms are the same no matter how many times the copyright might change hands.
So current law doesn't protect works for hire more than works by authors -- it might work that way sometimes, but not always -- what about the 20-year-old kid that wrote those fantasy novels, if he lives to be 70, that means those copyrights have a 140 year lifetime, longer than any "work for hire."
As and aside, interestingly enough, if you publish something anonymously, or using a fake name, then you get the "work for hire" copyright terms, and not the life + 70 terms.
Now, all that said, I agree that these terms, as they exist currently, are far too long. The point here was just to note that "works for hire" DO have copyright terms, and they are not significantly different from those for authors.
Neither the members of the MPAA nor the members of the RIAA sell anything that anyone needs.
An excellent point many seem to gloss over or miss entirely...
If you were really as outraged as you act you would use them and avoid DRM completely.
Outrage is easy, right up until you have to decide whether or not to go without something you want in order show your outrage -- most like the idea of change, but are unwilling to give up anything to effect that change.
Want to add restrictions? Spell them out at the time of purchase.
That's far and away the most reasonable approach I've heard so far. Let the manufacturers do whatever then want regarding contractual limitations, but make sure they are spelled out up front.
We do this with cars and houses and certain other sales, there is no reason we couldn't do the same with other goods. Hell, we even do it with cigarettes -- at least if the info is up front, people who don't care still don't have to care, but people who do care can make informed decisions.
If he is doing this entirely for his own use, it is *NOT* copyright infringement.
While practically the might be the case, from a purely technical legal perspective, it's not -- there is no carte blanche given to "personal use" or "noncommercial use." Copying an entire book for "personal use" is STILL copyright infringement -- maybe from a practical matter it is not something that anyone would ever bother to enforce, but it is not legal.
Copyright should be renamed (and redesigned, in keeping with today's technology) to allow limited rights to 'publish for profit'.
I agree that noncommercial infringement of copyrighted works should be treated differently than infringement for commercial purposes -- and oftentimes it is treated differently. But I'm not sure what you are saying here -- are you saying that copyright should allow "limited" publication for profit by people other than the copyright holder? If so, that just doesn't really make sense -- if you are going to include that in the copyright laws, might as well do away with them altogether...
And maybe that's a good thing, I don't know -- but I don't think it is likely to happen anytime soon...
Rental DVDs are different (and much more expensive) than retail DVDs.
Maybe the rental DVD's at Blockbuster are different -- I don't know -- but they don't need to be different. I could preorder 200 copies of Revenge of the Sith from Amazon and start my own rental company the day they came in, and that would be perfectly legal.
That's the problem with the idea of rental DVD's having some sort of "code" or whatever that tells the player the DVD in a rental -- under the current law, any DVD is potentially a rental DVD, so you would either need to change the law (the "first sale doctrine" part of the law, at least), or require ALL DVD's to have said "code," which would ultimately restrict fair use.
Besides, what about libraries? They are not a rental market, but you are still not (legally) able to copy DVD's you get from the libraries -- would they have to pay for these "more expensive" rental copies?
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I've never seen any caselaw on this point, but since the point of an archival backup is to continue to use the media after the original is no longer useable, I suspect that your continued use of the materials would be lawful, although without the original disc, maybe hard to prove. Maybe a police report would do the trick. The "transfer" provisions all discuss voluntary transfers, so I suspect that a stolen disc wouldn't count. But you are right, these laws are pretty crazy, so who knows.
Just a comment, that section only applies to manufacturers of devices and media, it does not apply to the end user who may use them. This section is a result of the Betamax case, Universal v. Sony -- it basically lets Sony make DAT recorders and the like without being sued for infringement, but it doesn't indemnify the users of said DAT recorder if they are using the DAT recorder to make unlawful copies of a copyrighted work.
The restrictions on the creation and use of archival copies is real, and if you violate those restrictions it's really illegal. The case that established the concept of the archival backup and expressed its limitations is Vault Corp. v. Quaid Software, Ltd., 847 F.2d 255 (5th Cir. 1988). The Quaid ruling was extended to audio files, and a good review of the limitations on copying and backing up audio can be found in Recording Indus. Ass'n of Am. v. Diamond Multimedia Sys., 180 F.3d 1072 (9th Cir. 1999).
You are right, of course.
I fail to see how the RIAA can convince any court that the targets of their lawsuits broke the law without the shadow of a doubt.
They don't have to. "Beyond a reasonable doubt" is the criminal standard of proof -- in civil court, where this is, you only have a "preponderance of the evidence" standard, which is effectively "more likely than not." If you can show that someone at a particular IP address illegally downloaded copyrighted materials, and hey, you own that IP address, that is probably sufficient to show that, more likely than not, it was you.
You can put up a defense, of course -- but you need to do more than raise a "reasonable doubt." You need to prove to the jury that, more likely than not, it was someone else who did it. That's why you would need to give up logs or MAC addresses or whatever you might have to prove that it was someone else, not you.
I agree with what you are saying, to a point. But, how would that play in say an apartment where there may be one common IP address for multiple adults? There has to be more basis for the target of the suit than JUST IP address. In this day and age of 'shared' IP addresses (or even spoofed ones), an IP address is not an identification.
In your hypo, if the RIAA obtained an IP address in a home where there are multiple adults, there are a couple of things the RIAA could do. First, it could just sue the "owner" of the IP address, and if the RIAA could prove it's case against the owner, then the burden would shift to the owner to prove that "hey, it wasn't me, it was my roommate!" Maybe that would be easy to prove, who knows, it would depend on the actual facts of the situation. In a criminal case, not knowing exactly who did something could be fatal to the case -- but here, in civil court, with only a "more likely than not" burden of proof, it could be easy to "prove" that the owner did it (you have his IP address, you have proof the he owns it, you have proof that he unlawfully downloaded copyrighted materials). Think about it -- if you found infringing materials passing through an IP address that a particular person owned, would your first inclination be "he did it" or "somebody must have hacked into his system to do it?" Since most people would probably believe the former, that's "more likely than not."
Once the RIAA proves "more likely than not," it's up to the defendant to not just speculate that it was someone else, but to prove it. If he has some evidence that the IP address was spoofed, or some evidence that one of his roommates did it, then maybe he can prove his defense. But he can't just rely on "you don't know who did it" -- that's just not how the court system works. If the RIAA can prove that he did it, he needs to prove (by the same preponderance standard) that he didn't do it -- if he can do that, he wins.
Now, if all of the roommates share ownership of the IP address, the RIAA still only has to prove that at least one of the owners infringed. If they can do that, they can hold all of the owners "joint and severally" liable for the infringement. If one of the owners rats out his friends, and has evidence to back it up, he might get away from any liability. But, in this case, the RIAA doesn't have to prove which of the owners did the infringing -- they only have to show that at least one of them did, and then it's up to the group found liable to figure out who is going to pay for it.
BTW, this works in criminal cases too, although the burden of proof is a lot higher. If 5 people are sitting around a bag of pot when the cops bust in, all five could be convicted of possession unless somebody was able to prove that there was only one owner of the pot, or, at least, that THEY were not an owner of the pot. There usually isn't safety in numbers -- like the Billy Joel song goes, sometimes "you'll all go down together."
There's nothing special about the IP address, I only used that because the parent post did. Anything that can identify the location of the downloading -- be it an IP address, a mailing address, smoke signals, whatever -- can be used by the plaintiff to at least point out where the infringement occurred. Is that enough to "prove" that the defendant infringed -- who knows, that's a question for the jury (or the judge, in a bench trial) -- but, since the burden is really "more likely than not," it may be sufficient. All the RIAA needs to show is some locational evidence -- maybe an IP address, maybe something else -- that links the infringement to the defendant, and that may be sufficient to meet their burden. At that point, then the defendant has to prove, by the same preponderance standard, that it wasn't her, but someone else. The burden flips at the point where the RIAA "proves" their side of the case -- that is is more likely than not that the defendant infringed.
In reality, there is no such tipping point -- in court, the plaintiff makes their case, the defendant tries to prove up any defenses they might have along with poking holes in the plaintiff's case, and then the judge or jury wieghs everything and makes a decision. If both the plaintiff and defendant "prove" their sides, the defendant wins. If the plaintiff proves their side but the defendant doesn't, plaintiff wins. If plaintiff fails to prove their side, defendant wins regardless of whether or not they prove their side.
Especially when, under current copyright law, they would probably lose anyway, then they are out the legal fees AND the costs, which are probably bigger now...
This would almost work, except for one thing -- while it is indeed legal to sell a partial ownership in a CD you own, and it is also legal to make an archival copy, or copies, of a CD, the problem is that under the laws, you cannot have an archival copy of the CD separately from the actual CD itself. In other words, you could do this, make 100 "archival" copies, but to keep it legal, whoever actually had in their possession the original CD is also the only one that can lawfully have possession of the archival copies.
There were a few cases on this where video rental places wanted to keep pristine their originals, and rent out the backup copies. Even if done on a one-to-one basis, this isn't legal, because when the physical possession of the original CD is transferred, any archival backups (in any form) must either be transferred with the CD or destroyed. It doesn't matter that you are all owners -- the point of an archival bakcup is so that you don't have to go out and buy a new CD when the original gets destroyed, not so that you can listen to the CD at two different places at the same time.
You are close here. You've got the burden of proof correct -- more likely than not, or preponderance of the evidence -- but the RIAA does have a burden of proof, they have to prove their case or they lose. The burden is lower than in a criminal case, but the burden of proof is still their.
Now, the defendant also has a burden of proof -- they have to prove, again by a preponderance of the evidence, and defenses they intend to rely on. So if the mom in this case tries to defend herself by saying it wasn't her, she has to prove (preponderance) that it wasn't her -- she doesn't get a free pass.
Bzzt. Try again. The defense has no burden of proof. The plaintiff (or prosecution, in criminal cases) does.
That's not correct. The plaintiff in this case has the burden of proof to prove that the person (or their IP address) did download the offending materials. If they can't prove that beyond a preponderance of the evidence (more likely than not), then the defense wins. But if the RIAA CAN prove that the defendant's IP address was used to download infringing materials -- and that should be easy, because they needed that info to figure out who to sue in the first place anyway -- then it's up to the defendant to PROVE that it was someone else, and not her.
Yes, the plaintiff has to prove up their side of the case, but the defendant also has to prove up any defenses they want to throw up as well. The court just doesn't take the defense's word for it -- think about it, if the defense didn't have to prove anything, your legal fees would be quite low because you would need a lawyer. The plaintiff would prove up their case, you'd say "sorry, wasn't me" and that would be it. But that's not the way it works -- the defendant does have to prove their defenses.
The problem with your defense is, the RIAA will need to show -- by a preponderance of the evidence, more likely than not -- that the infringement occured at your IP address. At that point, when you say, "it wasn't me, it was somebody stealing my bandwidth," the burden then shifts to YOU to prove, by a preponderance of the evidence, that it was somebody else and not you that did the infringing. You'll have to come up with some way to prove that somebody else was doing the infringing to prevail on your defense. Who knows, it might work, but it's more complicated than trying to obfuscate the real infringer -- you need to have some proof that it wasn't you for the court to buy it.
Did you notice where I suggested that the patent system, rather than being scrapped, be modified to have an affirmative defense of independent development?
Well, that's one idea, but I'm not sure that it's the best idea. The problem is, a patent must disclose the "best mode" or operation -- even though the patent drafters attempt to obfuscate the best mode in their application, the fact is most patents, once published, contain enough information to give a considerable head start to anyone else. In fact, that's the "tradeoff" -- the government grants you a temporary monopoly in trade for you coughing up the details of how your invention works to the public. Further, most patent applications are published after 18 months, long before the patent actually issues -- so where do you start the timeline for "independent development?" Once the application is published, another company has access to the inventor's "best mode," and will have a considerable head start. Maybe if you set the "independent development" clock so that you had to be working on an invention prior to the application being published -- but then, what would qualify as "independent development?" If I am just sort of messing around with a GUI, see your application, then implement your invention, is my earlier messing around sufficient to qualify as "independent development?" While your idea appears sound, it just seems like it would be just as complicated to prove "independent development" as it would to prove any of the other defenses to infringement (noninfringement, invalidity, unenforceability, inequitable conduct).
I think some changes need to be made to the patent system, but I'm not sure that this sort of defense would really add much to the equation.
Besides, like I noted in my post, if your system is so complex or time-consuming that any reverse-engineering would take as much or nearly as much time and effort to implement as coming up with the idea from scratch, then maybe in your case you don't need the patent protection anyway!
Any law system which requires someone specifically trained to be able to properly defend one's interests in the court is broken, badly.
I agree, in principle. But, even though I could, if I took enough time, repair the pipes in my house, or repair the electrical system in my car, I prefer to have someone who is specifically trained in such repairs to do them. It's more efficient to have an someone who is trained in such repairs to do them. The law is really no different -- it's not that hard to learn enough law to defend yourself if you needed to, but its likely more efficient to simply hire an expert. The courts allow you to defend yourself, or pursue a case yourself, so you could learn the law and have a go at it yourself if you really wanted to take the time to educate yourself.
I know this isn't exactly the point you were driving at, but I think it's a reasonable argument. Of course, dealing with your rights being much more important that dealing with your plumbing is a valid counterargument...
Law should be short, simple, and concise, so that everyone - every single able individual - can understand it in its entirety.
Again, I agree in principle. But when you limit the law to short, concise, simple rules, you will either have to have a gazillion of them, to cover everything we want to, or you allow a lot of potentially harmful activity to occur because you don't have laws against them. Plus, such concise rules will inherently have no flexibility in them. This makes it easy to determine if what you are doing is right or wrong, but leaves no room to let someone off the hook for doing the wrong thing for the right reason. That's one of the great advantages of our "common law" system -- it's flexible, and although there is uncertainty in some cases, it also allows the law to extend to cover things when necessary, and can be pulled back to allow other things if such a result is a fair result. It's not perfect, but then, no system ever will be completely fair and perfect.
Current patent law really only serves the really big companies.
It may seem that way, but it's not really true in practice. There are numerous firms that will take a patent infringement case on contingency these days, which makes it a lot easier for small companies or individual inventors to fight off even massive companies. And it does happen -- the firm I work for a year or two ago helped a client settle a case with an individual inventor who was going around gaining multi million dollar licensing agreements from various big players in the industry, because he had a righteous patent on a fundamental technology.
You don't hear much about the mom-and-pop companies or individual inventors suing other small companies (or even big companies), but it happens a lot more than you might image. Not every patent infringement case is between IBM and Microsoft, or whatever two behemoths you want to discuss. If anything, individual inventors or small companies are MORE likely to engage in litigation to protect their patents, copyrights, trade secrets and trademarks than are big companies -- the big companies usually just end up in cross-licensing agreements, it's the little guys that often end up in court.
Even if their competitors copy the fruits of their research, one still had first-mover advantage in applying it first.
But did the research and development for the "first-mover" come free? Who cares who got something first -- if I can freeload off of the "first-mover" and not have to do my own research and development, I can pass the savings on to my customers, who will buy my products because I can sell them cheaper.
Yes, this is good for consumers, because it tends to drive prices down to their free market level quickly. However, who then is going to pay for the R&D if they are unable to recoup their costs via above market pricing?
What incentive is there for any company to invest in R&D if a freeloader can then come in and undercut your prices because they didn't have to pay for the R&D?
Now, if it is very difficult to reverse-engineer your advantage, then fine, maybe you don't really need the patent protection, because you essentially have a "natural" monopoly. But many inventions are easily reverse-engineered -- look at any patent that gets brought up on this board, and how quick everyone is to say that it's obvious -- sure it's obvious, after someone else has figured out how to do it.
That's the point of the incentive -- not so that we ensure that companys make profits, but to incentivize R&D by keeping freeloaders from driving down prices before the company that actually paid for the R&D can recoup their costs and make a profit.
We've had patents for 200 years now, and haven't fallen behind yet...
Also, most every country has their own patent system in place, and with the Patent Coorperation Treaty, it's relatively simple (albeit expensive) to get patent protection in many different countries simultaneously. And with the rise of the European patent, it will be even easier to obtain patent protection in numerous countries.
But you are right, you can't enforce a U.S. patent anywhere but the U.S.
I fail to see a basic difference between this and using DeCSS to view a DVD on a unsupported platform.
The big difference between using DeCSS and this case is that in this case, the owner of the materials figured out for themselves how to break the protections in the code. The DMCA prohibits the distribution of methods for breaking copy protections, but it doesn't prohibit you, an individual, from figuring out how to do it yourself. If you could figure out DeCSS on your own, you are free to use it on your own system -- but you can't distribute the information without running afoul of the DMCA provisions in the copyright code, and you are not allowed to purchase or otherwise obtain tools or methods for cracking copy protection from others.
Basically, if you've got the skills to do it yourself, you can crack copy protection without running afoul of the copyright code. If you need help, or give help to anyone else, that's where you get into trouble.
I just like the fact that anyone who makes such an assertion seems to believe that THEY will surely be above the cut-off line for IQ...
Wait just one second. If the RIAA can collect royalties because caching is considered recording, how do radio stations get away with time shifting their broadcaast.
For one thing, copyright law specifically gives radio stations the right to do this. See 17 U.S.C. 112.
why shouldn't everyone but the US fear the country with the highest number of unprovoked first-strike wars in its history have it?
So, how do you define "history?" Or "wars?" Or "unprovoked?" I guess you could come up with definitions of those terms where the U.S. ends up the winner, but I suspect that there are other, equal as valid (or maybe even better) definitions of those terms that would end up with the UK on top. Or France. Or any of the other "colonial" powers.
Current law extends some copyrights to the author's lifetime plus ninety years. Current law protects "work for hire" more than work you do for yourself. Current law doesn't limit copyright protection once the work is no longer owned by its creator. It is not balanced and blatantly designed to turn information into a commodity.
That's not really true. The "life + 70 years" for the author doesn't change when the copyright gets sold -- even to a big company -- the term is still "life of the author + 70 years." When a work is created by someone using their real name, the term is their life + 70, not matter who owns the copyrights or how many times it changes ownership.
Now, for a "work for hire," the company doesn't really have a lifetime, so the copyright term is the longer of 95 years from first publication or 120 years from creation, and again, those terms are the same no matter how many times the copyright might change hands.
So current law doesn't protect works for hire more than works by authors -- it might work that way sometimes, but not always -- what about the 20-year-old kid that wrote those fantasy novels, if he lives to be 70, that means those copyrights have a 140 year lifetime, longer than any "work for hire."
As and aside, interestingly enough, if you publish something anonymously, or using a fake name, then you get the "work for hire" copyright terms, and not the life + 70 terms.
Now, all that said, I agree that these terms, as they exist currently, are far too long. The point here was just to note that "works for hire" DO have copyright terms, and they are not significantly different from those for authors.
Neither the members of the MPAA nor the members of the RIAA sell anything that anyone needs.
An excellent point many seem to gloss over or miss entirely...
If you were really as outraged as you act you would use them and avoid DRM completely.
Outrage is easy, right up until you have to decide whether or not to go without something you want in order show your outrage -- most like the idea of change, but are unwilling to give up anything to effect that change.
Want to add restrictions? Spell them out at the time of purchase.
That's far and away the most reasonable approach I've heard so far. Let the manufacturers do whatever then want regarding contractual limitations, but make sure they are spelled out up front.
We do this with cars and houses and certain other sales, there is no reason we couldn't do the same with other goods. Hell, we even do it with cigarettes -- at least if the info is up front, people who don't care still don't have to care, but people who do care can make informed decisions.
If he is doing this entirely for his own use, it is *NOT* copyright infringement.
While practically the might be the case, from a purely technical legal perspective, it's not -- there is no carte blanche given to "personal use" or "noncommercial use." Copying an entire book for "personal use" is STILL copyright infringement -- maybe from a practical matter it is not something that anyone would ever bother to enforce, but it is not legal.
Copyright should be renamed (and redesigned, in keeping with today's technology) to allow limited rights to 'publish for profit'.
I agree that noncommercial infringement of copyrighted works should be treated differently than infringement for commercial purposes -- and oftentimes it is treated differently. But I'm not sure what you are saying here -- are you saying that copyright should allow "limited" publication for profit by people other than the copyright holder? If so, that just doesn't really make sense -- if you are going to include that in the copyright laws, might as well do away with them altogether...
And maybe that's a good thing, I don't know -- but I don't think it is likely to happen anytime soon...
Rental DVDs are different (and much more expensive) than retail DVDs.
Maybe the rental DVD's at Blockbuster are different -- I don't know -- but they don't need to be different. I could preorder 200 copies of Revenge of the Sith from Amazon and start my own rental company the day they came in, and that would be perfectly legal.
That's the problem with the idea of rental DVD's having some sort of "code" or whatever that tells the player the DVD in a rental -- under the current law, any DVD is potentially a rental DVD, so you would either need to change the law (the "first sale doctrine" part of the law, at least), or require ALL DVD's to have said "code," which would ultimately restrict fair use.
Besides, what about libraries? They are not a rental market, but you are still not (legally) able to copy DVD's you get from the libraries -- would they have to pay for these "more expensive" rental copies?