Still doesn't even come close to a correct comparison......Are those Mp3s worth billions of dollars???!!! I doubt it. If they are the only recordings several things are probably true....1) this is from his own band or some band he knows personally and they probably don't have much worth beyond those few people (at least not yet)....2) Do you actually know ANY band that records to MP3?? So it is HIGHLY unusual for these to be the only recordings (and the only copies....the guy himself said he had copies)....3) He broke the agreement by putting the Mp3s on the server, so he would have no claim.
And you also forgot that the burden of proof is on the plaintiff....That means the RIAA would have to prove that the ISP knew about a particular copyright violation......The ISP doesn't have to prove the opposite, unless the plaintiff meets their burden and then he is trying to rebut their case.
Oh and Napster and MP3.com decisions don't follow your analysis.....In those cases there was ACTUAL copyright violation going on.....NOT distribution of legal MP3 files......I am curently writing a paper for my entertainment law class on this topic, including those cases. Hopefully it will be good enough to make it in our Law Review:)
So don't be soooo afraid of the RIAA....hehehehe... they aren't 'The Evil Empire' with the power to take away your Mp3s.....Only those that violate copyrights....And they really don't want to take away MP3s anyway....They just want to get into the buisness of internet distribution themselves......I say that now because of the settlements that Napster is making with the recording companies.....And the fact that evidence tended to show that record companies didn't actually loss any money due to Napster....CD sells actually increased significantly during the Napster period.
Just to relieve your fears....It won't happen....There is already a case that lays down this principle.....I can't remember the plaintiff but the defendant was sony......Anyway the principle is that technology can't be ruled to be violating copyrights UNLESS there is no reasonable and legal use for that technology....This was the DAT case and the court ruled in Sony's favor (So your comments on DAT is also incorrect), but I do believe that Sony did make some concessions in a settlement, probably mainly because I think that Sony also owns music copyrights. Point is that MP3s have just a much a legal purpose as an illegal one.....The format itself is safe (from court rulings anyway)
Well let me help you clear this up....You had a logical arguement with solid reasoning, but just not entirely correct.....That law has already ruled that ISPs will not be held vicariously liable for the illegal actions of their clients, UNLESS they are on notice of the activity......That last part is key and speaks to what you are talking about....You say that it could be argued that because the ISP took it upon themselves to look for MP3s and to delete them, they are on notice of the illegal activity, and if they miss some they are therefore now liable.....You missed one CRITICLE point though....MP3 files themselves are NOT illegal.....ALL the ISP knows is that there are MP3 files on their servers.....NOT that a particular copyright has been violated. The reason the ISP deletes the files is unrelated to the legal status of the files, ie they are doing it to protect their own interests in bandwidth usage, etc. So in short the fact that an ISP has deleted MP3 files from their servers would not be enough to find that they were on NOTICE of a copyright violation....That would require that the holder of the copyright actually notify the ISP of the violation.....Then the ISP has a legal duty to remove the offending files.....Hope that helps clarify
The terms explicitly stated that storing MP3s on their servers was prohibited.....They would not have to explictly state they would delete your files....IF you violate the agreement the ISP has every right to take steps to correct your breach. INCLUDING possibly cutting off your service.
Actually IF you install their software then you signed a contract......MS as well as most software producers have a screen detailing the terms of the software license and force you to hit and 'I agree' button in order to continue the install.....That is your signature.....Same is true when you sign up for an ISP over the web....They usually will have you hit a button saying that you have read and agree to all their terms. That is legally enforceable
If they did attempt to apply that fine he could take them to court and invalidate this clause.....It seems to me to be a punitive damages type of clause (which is strictly prohibited in contract law) rather than a Liquidated Damages Clause (which is ok).....Liquidated Damages are used to approximate the ACTUAL damage suffered in the event of a breach.....THIS particular clause smacks of punies here.....It would be very hard to argue that $300 per violation (IE per file) approximates the ACTUAL damage the ISP suffered because he stored them in his account. ANY good lawyer could attack this clause and probably be successful. Just goes to show you that more than likely the ISP didn't get a lawyer to draft the terms, but just did it themselves. A lawyer that actually passed the bar should have recoginzed this clause as suspect. If he didn't he committed mal-practice.
Just a minor correction......You said **At this point someone tosses in "ignorance is no excuse for breaking the law." But no one is breaking the law. Is this child porn? No.**.......Your wrong there...You have a LEGAL obligation to abide by the terms in a contract.....When you you breach a contract you are breaking the law, although there are no moral or criminal implications.....Go ahead and breach, just be prepared to pay damages....That's the basic contract principle. So the principle of ignorance is no excuse for breaking the law still holds true. We just aren't talking about criminal law, but rather contract law.
Not ALL webpage or written material is automatically copyrighted......It has to be original (and what does original mean? Debatable, but courts probably would say anything more than an alpha-numeric listing)....Facts are not copyrightable, nor ideas....although the particular form of facts or ideas can be....Given that it could be possible to have a non-copyrightable webpage. Although I agree with you that taking that rule to the letter would defeat the purpose of the internet connection. It probably should read 'all illegal transport of copyrighted material across these servers is strictly prohibited and will constitute a violation of the terms of this agreement'.....This clarifies the language.
You don't agree with copyright laws??? You must never have actually created anything original. If you did then you would be glad something protects your rights to that creation. Although it certainly is debatable about whether extending the copyright period 20 years was a good thing or not.(this was done two years ago).....And as far as suing you for something you own....DUH!!! You have to have standing in order to sue for a copyright.....In other words you have to actually own the copyright in order to sue for a violation....The RIAA can't just sue you because you violated somebody's copyright....It has to be one they or somebody they represent owns.....AND ISPs will be immune UNLESS they know about the violation.
OH MY GOD!!! ANOTHER MONA LISA ANALOGY!!!! Are you people nuts???!!!! You really are comparing an MP3 file to a painting that is priceless???!!! Something that is a copy of some other recording to something that is one of a kind????!!! I already know you have absolutely no legal education but do you have any type of education at all???!!! Please come up with some logical arguement at least. You did say one intelligent thing....If you don't like the terms of service then go somewhere else. That's what a free market is all about.
And where did you get your law degree?!! Certainly not from my school. There are sooooo many things wrong with what you said where to begin:) 1st) The basic thing is that IF the ISP told you in their terms that storing MP3s on their servers is a violation of the agreement then it is YOU who breached....NOT the ISP when they delete those MP3s....2nd) You are actually trying to claim that deleting a MP3 of some music artist is like destroying the Mona Lisa????!!!! How to you come up with that drivel? The Mona Lisa is one of a kind....IE it only exists in that one form.....MP3s on the other hand, are digital copies of some other recording....The recording exists in some other form.....You usually can't even claim the MP3 is the original recording (I don't know many recording artists that record straight to MP3) 3rd) Even if you could establish that the MP3 recording was the ONLY recording of that music YOU still violated the terms of the contract YOU signed by putting it on the server....Therefore you would still have absolutely no claim. Stick to what you know (playing music) and leave all the legal issues to actual lawyers.
Oh what kind of analogy is that? Your comparing regulating content on computer servers to shooting somebody?!!! Are you in grammer school or something? That is an illogical comparison.....TWO totaly different interests implicated....One implicates contracts, and possibly personal or intellectual property......while your hypo is obviously a crime....Assault with a deadly weapon, attempted murder, etc....
The law isn't that damn technical dude.....Saying the contract says one thing with an 'is' and something else with 'are' isn't likely to be a winning argument in court. The intent of the contract seems pretty clear even to non-legal people. Just because there is a possibility of interpreting it differently doesn't mean a judge will intrepret it that way. The judge will rule on what reasonably seems to be the intent of the parties.....AND will usually defer to the drafter.
No.....In the case of lists 'and' is just a conjunction. The meaning is likely to be intrepreted to mean that either of the items in the list is prohibited.....It would be the same as saying 'The storage of MP3 format files and the distribution of MP3 format files. It's not likely to be intrepeted to be two sepparate elements that must be satisfied in order to constitute a breach.
Then you would have a claim against them for breach of contract.....BUT from what I have read this WAS in the terms a user MUST agree to in order to get service......It is YOUR responsibilty to READ ANY contracts you may be asked to sign FULLY BEFORE SIGNING.....Claiming that you didn't read it won't help you in court
Actually the current state of the law is NOT to hold ISPs liable for illegal content on their servers, UNLESS they know about it and continue to do nothing about it.....ISPs are comparable to landlords....Landlords would not be held liable for what their tenants did, precisely because the landlord doesn't have the right to spy on you....ISPs may be said to have some right to monitor content on their servers, but to hold that they are REQUIRED to do so would be expensive and probably unworkable....THEREFORE the law has held that they can't be held to be vicariously liable for what their clients may or may not do across their servers
This is true of ALL contracts! People really should read all terms BEFORE they sign. I know how easy it is to ignore this advice....I often do it myself and I'm a law student.....Although I am more careful with these things now after my first year:)
No you should learn to read more.....I was replying to a message saying that ISP's should not be able to claim certain activites to violate their terms of usage......I then said they should be able to provide their service in the manner they wish! AND THAT IS THE LAW!!! There is such a notion as 'freedom of contract'.....That means parties are free to contract in any means they see fit! Don't resume to lecture on the law unles you actually know what the heck you are talking about.....I also put a statement that this doesn't apply to fraud....same is obviously of other tortiuos conduct.....But outside of that ISP's are perfectly within their rights to detail how their service may be used. I also NEVER said anything about their deleting files.....My comments did NOT go to that topic.....ONLY to the TOS....So you should study more, since it is obvious you know absolutely NOTHING about legal principles.
I didn't really answer your second part....so lets try that now....
First this is under Products Liability law......Cars and most physical products can come under this category and can impose liability in the absense of tortious conduct.....The theory of liability is called strict liability....BUT drugs no longer fit the same model, becuase most jurisdictions have ruled that drug manufacturers can't be sued under a strict liability theory, but only for tortious conduct (such as negliegence). This is because the law has decided that drugs are so important to society that they won't impose liability absent some tort. And the law hasn't really extended a this model to take in software or ISPs......Mainly they really aren't 'physical' products....And damages would usually be economic in nature.....Not physical.....Products Liabilty law is mainly designed to compensate for some personal injury due to the use of some product, not some fiscal loss sustained.
Hope that helps clear things up
Ok.....I also answered this above but I will here too:) **I am not a lawyer, YET, but am a law student**
The simple answer to why all companies don't use this kind of disclaimer is because they don't work.....You can't disclaim away your own tortious conduct. There are some execptions to this general rule....Such as with extremely hazardous activities, sky-diving for example. In that case courts have ruled that the nature of the activity is so unusual that a contract can disclaim away liability......BUT in most other contexts courts will not enforce such a clause. This is basic contract law (Usually taught during 1st semester)
Actually you can't disclaim away liability for your own (or you agent's) tortious conduct.....This is a common misunderstanding and many companies try to do this.....For example parking lots....But this won't hold up in court.....They won't allow that type of disclaimer....You can only disclaim away damages that aren't related to any tortious conduct on your part......So in this context....If the webpage files or service is disrupted due to negligence on the part of the ISP then there can still be a claim, even given the disclaimer.....ALTHOUGH the second clause would function as a limitations on damages....THAT would be perfectly valid. Parties to a contract can agree to how to measure damages in the case of a breach.
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Still doesn't even come close to a correct comparison......Are those Mp3s worth billions of dollars???!!! I doubt it. If they are the only recordings several things are probably true....1) this is from his own band or some band he knows personally and they probably don't have much worth beyond those few people (at least not yet)....2) Do you actually know ANY band that records to MP3?? So it is HIGHLY unusual for these to be the only recordings (and the only copies....the guy himself said he had copies)....3) He broke the agreement by putting the Mp3s on the server, so he would have no claim.
And you also forgot that the burden of proof is on the plaintiff....That means the RIAA would have to prove that the ISP knew about a particular copyright violation......The ISP doesn't have to prove the opposite, unless the plaintiff meets their burden and then he is trying to rebut their case.
Oh and Napster and MP3.com decisions don't follow your analysis.....In those cases there was ACTUAL copyright violation going on.....NOT distribution of legal MP3 files......I am curently writing a paper for my entertainment law class on this topic, including those cases. Hopefully it will be good enough to make it in our Law Review :)
So don't be soooo afraid of the RIAA ....hehehehe... they aren't 'The Evil Empire' with the power to take away your Mp3s.....Only those that violate copyrights....And they really don't want to take away MP3s anyway....They just want to get into the buisness of internet distribution themselves......I say that now because of the settlements that Napster is making with the recording companies.....And the fact that evidence tended to show that record companies didn't actually loss any money due to Napster....CD sells actually increased significantly during the Napster period.
Just to relieve your fears....It won't happen....There is already a case that lays down this principle.....I can't remember the plaintiff but the defendant was sony......Anyway the principle is that technology can't be ruled to be violating copyrights UNLESS there is no reasonable and legal use for that technology....This was the DAT case and the court ruled in Sony's favor (So your comments on DAT is also incorrect), but I do believe that Sony did make some concessions in a settlement, probably mainly because I think that Sony also owns music copyrights. Point is that MP3s have just a much a legal purpose as an illegal one.....The format itself is safe (from court rulings anyway)
Well let me help you clear this up....You had a logical arguement with solid reasoning, but just not entirely correct.....That law has already ruled that ISPs will not be held vicariously liable for the illegal actions of their clients, UNLESS they are on notice of the activity ......That last part is key and speaks to what you are talking about....You say that it could be argued that because the ISP took it upon themselves to look for MP3s and to delete them, they are on notice of the illegal activity, and if they miss some they are therefore now liable.....You missed one CRITICLE point though....MP3 files themselves are NOT illegal.....ALL the ISP knows is that there are MP3 files on their servers.....NOT that a particular copyright has been violated. The reason the ISP deletes the files is unrelated to the legal status of the files, ie they are doing it to protect their own interests in bandwidth usage, etc. So in short the fact that an ISP has deleted MP3 files from their servers would not be enough to find that they were on NOTICE of a copyright violation....That would require that the holder of the copyright actually notify the ISP of the violation.....Then the ISP has a legal duty to remove the offending files.....Hope that helps clarify
The terms explicitly stated that storing MP3s on their servers was prohibited.....They would not have to explictly state they would delete your files....IF you violate the agreement the ISP has every right to take steps to correct your breach. INCLUDING possibly cutting off your service.
Actually IF you install their software then you signed a contract......MS as well as most software producers have a screen detailing the terms of the software license and force you to hit and 'I agree' button in order to continue the install.....That is your signature.....Same is true when you sign up for an ISP over the web....They usually will have you hit a button saying that you have read and agree to all their terms. That is legally enforceable
If they did attempt to apply that fine he could take them to court and invalidate this clause.....It seems to me to be a punitive damages type of clause (which is strictly prohibited in contract law) rather than a Liquidated Damages Clause (which is ok).....Liquidated Damages are used to approximate the ACTUAL damage suffered in the event of a breach.....THIS particular clause smacks of punies here.....It would be very hard to argue that $300 per violation (IE per file) approximates the ACTUAL damage the ISP suffered because he stored them in his account. ANY good lawyer could attack this clause and probably be successful. Just goes to show you that more than likely the ISP didn't get a lawyer to draft the terms, but just did it themselves. A lawyer that actually passed the bar should have recoginzed this clause as suspect. If he didn't he committed mal-practice.
Just a minor correction......You said **At this point someone tosses in "ignorance is no excuse for breaking the law." But no one is breaking the law. Is this child porn? No.**.......Your wrong there...You have a LEGAL obligation to abide by the terms in a contract.....When you you breach a contract you are breaking the law, although there are no moral or criminal implications.....Go ahead and breach, just be prepared to pay damages ....That's the basic contract principle. So the principle of ignorance is no excuse for breaking the law still holds true. We just aren't talking about criminal law, but rather contract law.
Not ALL webpage or written material is automatically copyrighted......It has to be original (and what does original mean? Debatable, but courts probably would say anything more than an alpha-numeric listing)....Facts are not copyrightable, nor ideas....although the particular form of facts or ideas can be....Given that it could be possible to have a non-copyrightable webpage. Although I agree with you that taking that rule to the letter would defeat the purpose of the internet connection. It probably should read 'all illegal transport of copyrighted material across these servers is strictly prohibited and will constitute a violation of the terms of this agreement'.....This clarifies the language.
You don't agree with copyright laws??? You must never have actually created anything original. If you did then you would be glad something protects your rights to that creation. Although it certainly is debatable about whether extending the copyright period 20 years was a good thing or not.(this was done two years ago).....And as far as suing you for something you own....DUH!!! You have to have standing in order to sue for a copyright.....In other words you have to actually own the copyright in order to sue for a violation....The RIAA can't just sue you because you violated somebody's copyright....It has to be one they or somebody they represent owns.....AND ISPs will be immune UNLESS they know about the violation.
OH MY GOD!!! ANOTHER MONA LISA ANALOGY!!!! Are you people nuts???!!!! You really are comparing an MP3 file to a painting that is priceless???!!! Something that is a copy of some other recording to something that is one of a kind????!!! I already know you have absolutely no legal education but do you have any type of education at all???!!! Please come up with some logical arguement at least. You did say one intelligent thing....If you don't like the terms of service then go somewhere else. That's what a free market is all about.
And where did you get your law degree?!! Certainly not from my school. There are sooooo many things wrong with what you said where to begin :) 1st) The basic thing is that IF the ISP told you in their terms that storing MP3s on their servers is a violation of the agreement then it is YOU who breached....NOT the ISP when they delete those MP3s....2nd) You are actually trying to claim that deleting a MP3 of some music artist is like destroying the Mona Lisa????!!!! How to you come up with that drivel? The Mona Lisa is one of a kind....IE it only exists in that one form.....MP3s on the other hand, are digital copies of some other recording....The recording exists in some other form.....You usually can't even claim the MP3 is the original recording (I don't know many recording artists that record straight to MP3) 3rd) Even if you could establish that the MP3 recording was the ONLY recording of that music YOU still violated the terms of the contract YOU signed by putting it on the server....Therefore you would still have absolutely no claim. Stick to what you know (playing music) and leave all the legal issues to actual lawyers.
Oh what kind of analogy is that? Your comparing regulating content on computer servers to shooting somebody?!!! Are you in grammer school or something? That is an illogical comparison.....TWO totaly different interests implicated....One implicates contracts, and possibly personal or intellectual property......while your hypo is obviously a crime....Assault with a deadly weapon, attempted murder, etc....
The law isn't that damn technical dude.....Saying the contract says one thing with an 'is' and something else with 'are' isn't likely to be a winning argument in court. The intent of the contract seems pretty clear even to non-legal people. Just because there is a possibility of interpreting it differently doesn't mean a judge will intrepret it that way. The judge will rule on what reasonably seems to be the intent of the parties.....AND will usually defer to the drafter.
And what the heck does 'xor' have to do with legal doctrine?
No.....In the case of lists 'and' is just a conjunction. The meaning is likely to be intrepreted to mean that either of the items in the list is prohibited.....It would be the same as saying 'The storage of MP3 format files and the distribution of MP3 format files. It's not likely to be intrepeted to be two sepparate elements that must be satisfied in order to constitute a breach.
Modification clauses such as this one can be attacked. It's not so bulletproof.
Then you would have a claim against them for breach of contract.....BUT from what I have read this WAS in the terms a user MUST agree to in order to get service......It is YOUR responsibilty to READ ANY contracts you may be asked to sign FULLY BEFORE SIGNING.....Claiming that you didn't read it won't help you in court
Actually the current state of the law is NOT to hold ISPs liable for illegal content on their servers, UNLESS they know about it and continue to do nothing about it.....ISPs are comparable to landlords....Landlords would not be held liable for what their tenants did, precisely because the landlord doesn't have the right to spy on you....ISPs may be said to have some right to monitor content on their servers, but to hold that they are REQUIRED to do so would be expensive and probably unworkable....THEREFORE the law has held that they can't be held to be vicariously liable for what their clients may or may not do across their servers
This is true of ALL contracts! People really should read all terms BEFORE they sign. I know how easy it is to ignore this advice....I often do it myself and I'm a law student.....Although I am more careful with these things now after my first year :)
No you should learn to read more.....I was replying to a message saying that ISP's should not be able to claim certain activites to violate their terms of usage......I then said they should be able to provide their service in the manner they wish! AND THAT IS THE LAW!!! There is such a notion as 'freedom of contract'.....That means parties are free to contract in any means they see fit! Don't resume to lecture on the law unles you actually know what the heck you are talking about.....I also put a statement that this doesn't apply to fraud....same is obviously of other tortiuos conduct.....But outside of that ISP's are perfectly within their rights to detail how their service may be used. I also NEVER said anything about their deleting files.....My comments did NOT go to that topic.....ONLY to the TOS....So you should study more, since it is obvious you know absolutely NOTHING about legal principles.
I didn't really answer your second part....so lets try that now.... First this is under Products Liability law......Cars and most physical products can come under this category and can impose liability in the absense of tortious conduct.....The theory of liability is called strict liability....BUT drugs no longer fit the same model, becuase most jurisdictions have ruled that drug manufacturers can't be sued under a strict liability theory, but only for tortious conduct (such as negliegence). This is because the law has decided that drugs are so important to society that they won't impose liability absent some tort. And the law hasn't really extended a this model to take in software or ISPs......Mainly they really aren't 'physical' products....And damages would usually be economic in nature.....Not physical.....Products Liabilty law is mainly designed to compensate for some personal injury due to the use of some product, not some fiscal loss sustained. Hope that helps clear things up
Ok.....I also answered this above but I will here too :) **I am not a lawyer, YET, but am a law student**
The simple answer to why all companies don't use this kind of disclaimer is because they don't work.....You can't disclaim away your own tortious conduct. There are some execptions to this general rule....Such as with extremely hazardous activities, sky-diving for example. In that case courts have ruled that the nature of the activity is so unusual that a contract can disclaim away liability......BUT in most other contexts courts will not enforce such a clause. This is basic contract law (Usually taught during 1st semester)
Actually you can't disclaim away liability for your own (or you agent's) tortious conduct.....This is a common misunderstanding and many companies try to do this.....For example parking lots....But this won't hold up in court.....They won't allow that type of disclaimer....You can only disclaim away damages that aren't related to any tortious conduct on your part......So in this context....If the webpage files or service is disrupted due to negligence on the part of the ISP then there can still be a claim, even given the disclaimer.....ALTHOUGH the second clause would function as a limitations on damages....THAT would be perfectly valid. Parties to a contract can agree to how to measure damages in the case of a breach.