But actually, it doesn't have a fancy latin name: it's just called "mailing of unordered merchandise". The federal statute is 39 U.S.C. 3009, and it was cited and analyzed at length in the judge's opinion (linked to from the EFF press release). The statute is designed to combat exactly this sort of scam: a company sends you something you didn't ask for, then imposes conditions on your ownership of it (like saying you can't sell it, or saying you have to pay for it).
Joe Gratz (attorney for the defendant in UMG v. Augusto, but speaking here only for himself)
Right, except that it's the establishment, not the performer, that's liable for the infringement. (This is an old rule which, I think rightly, recognizes that it's the establishment that's making the money and that one shouldn't go after the poor musician.) The case that comes to mind is Herbert v. Shanley, which was ASCAP's first Supreme Court case back in 1917: http://supreme.justia.com/us/242/591/case.html
Right, that's what they do before they sue. They go in and write down what was played.
As for contracts restricting what bands can play -- if the bar owner is sophisticated enough to think of writing (and then actually write and execute) such a contract, they're almost certainly sophisticated enough to figure out that the amount the PROs charge bars is very small compared to the value added by the ability to play any song the band wants. (It's really not that much money -- less than one good night's register ring pays for a whole year, I think.)
Also, the contract wouldn't be a defense to an infringement action by ASCAP -- it would just allow the bar owner to sue the band to pay back what he had to pay ASCAP. Which is not much help, as bands that play in bars are not particularly known for their financial stability and prompt repayment of debts.
The short version is that because ASCAP, BMI, and SESAC (known as PROs, or Performance Rights Organizations) are all private companies that are, at their core, really just bunches of copyright holders collecting together, they measure usage and divide up money however they want. They all do it differently, based on different data. ASCAP, for example, owns (or at least invested heavily in) MediaGuide, a company that has computers listening to every radio station in most major markets in the country and using audio fingerprinting to make playlists of everything that's on. Some PROs require radio and TV stations to make lists of everything they play for a certain part of every year. I think some of them use SoundScan record sales data. And people putting on concerts sometimes have to (or at least are allowed to) submit lists of the songs played. They extrapolate from all that data to get a picture of everything that's getting played everywhere. The estimation doesn't have to be perfect -- it just has to be good enough to satisfy a majority of the votes among the copyright holders who run the PRO. In practice, there are pretty complicated formulas, and I think it generally works on a "points" system. (You get more points for having your song played on NBC than on your local college radio station, etc.)
As for payments, it's all blanket licenses -- Chevy's, for example, pays a flat fee annually that's negotiated based on the ways Chevy's uses music. For example, an establishment with live music every night is likely to pay more than an establishment that plays the radio. (Ever wonder why some chain restaurants have stupid non-Happy Birthday birthday songs? It's to lower their ASCAP fee.)
1. This is nothing new. Public performances have had to be licensed since right around 1900, and ASCAP has been collecting fees for blanket licenses since 1914. This is not a new campaign designed to squelch independent musicians, as some comments have intimated.
2. This isn't controversial or surprising. It's not an issue of free speech or fair use, at least as far as public performances in profit-making business establishments are concerned. The EFF and the ACLU, I suspect, wouldn't be interested -- and neither would some random Congressman be shocked to have to pay ASCAP/BMI/SESAC fees, as one comment suggested. Maybe it would be good to allow unlicensed performances of music in business establishments, but that hasn't been the law for a very long time.
3. My sense is that around a dozen businesses decide to "fight" blanket license fees each year, thinking that somehow they won't end up having to pay or that the licenses aren't needed in order to play copyrighted songs in their establishments. They always lose.
4. ASCAP, BMI, and SESAC have occasionally been accused of "shaking down" businesses that really don't play any music for which they need a license -- like, say, bars that only play traditional Irish songs that are in the public domain. If those stories are true, the shakedowns are bad, wrong, and potentially liability-producing. (See also 17 USC 110.)
If you still want to be mad at somebody (and there may be good reason to be mad about some of this, just not most of it), at least be mad at the right people: ASCAP, BMI, and SESAC, who work as the agents of owners of copyright in musical works (not sound recordings). The RIAA is a group of copyright owners in sound recordings, and has nothing to do with this (except that some of the music publishers and some of the record labels are commonly owned).
First, it looks like the database files are already GPL'd. I'm not sure what you would want to do with the data that isn't allowed by the GPL.
Second, if you want to do something with the database that isn't allowed by the GPL (however the GPL applies to databases), you might want to ask your lawyer whether the freedb database files contain any copyrightable expression, given that the titles themselves are not copyrightable and much of their arrangement may be functional. I haven't looked closely at the files, but it would be worth investigating if for some reason you really wanted to make a derivative work of the database files without GPLing the result.
While it's true that there will be plenty of comments from copyright holders and their lawyers in this proceeding, it isn't true that "the rest of us" will be drowned out. The point of a Notice of Inquiry (the formal name for the proceeding the Copyright Office has undertaken) is to create a *record* which they can refer to in later rulemaking and in their report to Congressional leaders. In general, if and when rulemaking time comes around, they'll have to respond to every significant public comment.
So if you have an experience that brings to the fore the problem with licensing orphan works, they'll have to at least weigh your situation if you comment. If you don't comment, they won't.
As to the Copyright Office not making the law -- this proceeding was requested by Hatch and Leahy, chairmen of the Judiciary Committee (which is in charge of copyright law). This is Congress trying to figure out where the problems are so it can fix them. If you want your story before Congress, you must comment.
And further, it's not completely clear that Congressional action would be required to fix the orphan work problem. While that would be the most obvious way, there may be ways to change Copyright Office regulations regarding registration to fix the problem -- no Congressional action needed.
So, bottom line: this is not a waste of time. This is our best chance to put our facts before the decisionmakers. File your comments today.
Scents and scent formulas aren't copyrightable, and are only rarely patentable. That's why knock-off perfumes are legal. So "warez glade" could be perfectly legal, though stinky.
A suggestion. Whatever electronics you end up using, wire out the play button to a big pushbutton you buy from these guys:
http://www.happcontrols.com/
They sell video game / amusement parts, and we used to buy all of our controls from them. They just don't break, even with a hundred eight-year-olds slamming their fists into them for six hours each day.
As for the electronics themselves, there's a right way and there's a cheap way. The right way is to use something like the Radio Design Labs FP-MR1, which is a bulletproof digital message repeater. It's exactly what you want, but it's $225 each. The cheap way is to try and find a CD player or MP3 player that can boot up right into behaving the way you want -- either repesting all the time with the big button wired to the "forward" button or playing then pausing, with the big button wired to the "play" button. Unfortunately, it's likely on the CD player side that the only players that will do what you want will be pro models, and will cost several hundred dollars each.
Oh, have no fear, if this ever gets into real, juicy discovery (rather than this "give us some shred of an idea of what you might be accusing us of" phase we're in now), Ransom Love will be deposed, as will all of the developers at Caldera who contributed code to the kernel. It's not a matter of being pissed off enough to go along with it; they won't have any choice. They'll be subpoenaed and under oath.
In case anybody's wondering, under Utah law here's what SCO will have to prove:
"To prove slander of title, a claimant must prove that (1) there was a publication of a slanderous statement disparaging claimant's title, (2) the statement was false, (3) the statement was made with malice, and (4) the statement caused actual or special damages." First Sec. Bank of Utah, N.A. v. Banberry Crossing, 780 P.2d 1253 (Utah 1989).
(1) and (4) are a piece of cake, but (2) will be a hotly contested contract interpretation question and (3) will be VERY hard to prove.
They have downloadable binaries of the GPL'd software here, posted along with a copy of the GPL. As for source, the page says:
OpenTV will also provide any third party a complete machine-readable copy of the source code for OpenTV Distributed GNU Utilities on a medium customarily used for software interchange in exchange for our cost of physically performing such source distribution, provided the request is received no later than 3 years after OpenTV has distributed the OpenTV Distributed GNU Utilities to you. To request a copy of the source code for a particular OpenTV Distributed GNU Utility, please send a written request, including contact, billing and shipping information to:...
Which appears to comply with part 3(b) of the GPL:
(b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange.
So it seems that they've fixed it, the CD they send in response to requests doesn't contain all the code it needs to contain, or there's some other GPL'd code not included in the SDK distribution. Any other ideas on how they might not be in compliance?
Records 4 or 5 shows for me every week. I'm never around for Says You or On The Media, but thanks to KUOW's shoutcast 96k stream and a couple lines of shell scripting, I can listen anytime or put it on a portable player to listen to while working out.
Only trouble is, people look at you weird when you're grinning wryly while listening to Says You and using the elliptical trainer at the same time.
No can do. I'm a law student with one of the "crack dealer" unlimited student accounts on both Lexis and Westlaw, and the license agreement for our accounts doesn't allow republication.
While the texts themselves are PD, and there would be no COPYRIGHT problem with republishing them stripped of headnotes and such, there would be a breach of contract problem, since we agreed not to use our accounts for anything but our own schoolwork.
I have a feeling that there are similar restrictions on "real" (non-student) accounts, plus the multiple dollars per document the downloads would cost with a "real" account.
That said, the texts of federal decisions from 1995 on, I think, are freely available in electornic form. Software to linkify and track citations would be easy. The catch is, quite honestly, that the copyrighted ancillary material added by Lexis and Westlaw -- headnotes, coding about what the citing case SAYS about the cited case, etc. -- is awfully useful. Having a big archive of all of the decisions is great and all, but without the editorial content, it's pretty useless. For instance, the commercial DBs can answer the query, "Show me all of the federal district court cases that cited and agreed with the case I'm viewing on whether a dog sniff of an apartment building hallway is a 'search' under the Fourth Amendment." (Not in natural language like that, of course.) A public DB will never do that, and I think that's needed for efficient legal research.
You're right, as long as the book was just under copyright and you didn't agree to any other license. If you did agree to some, say, shrinkwrap book license, you'd have to obey that license.
Here, the user is agreeing to a license before they have access to the files. They have to obey that license. Just by keeping and using the computer, they're agreeing to the licenses that came in the box, whether or not they read them. Hill v. Gateway 2000 decided this issue in 1997.
It's a good opinion, by a smart judge (Frank Easterbrook). Read it.
IBM, perhaps unfortunately, would be promptly sued for trademark infringement if they did that, since Sun still holds a trademark on the phrase. I liked it better when, for once, relatively obscure bits of technical reality were lined up with marketing hype. Alas, no longer; the marketing hype lives on.
Seriously, I cannot believe that the rest of the world has not demanded that the US hand over control of ICANN to the UN.
Part of the point of ICANN was to avoid creating a new international treaty organization. I don't know that turning this all over to ISOC or IETF was ever really an option; the issue was simply too big. ICANN needs to be reined in, certainly, but having the DNS run by a subgroup of the International Telecommunications Union or by a new treaty organization would be a nightmare.
The big win of ICANN is that power stays with relatively clueful people (Dyson, Cerf, et al.) instead of representatives of major world governments. The really big win of ICANN was that the "people of the Internet" could elect even more clueful people to oversee the self-appointed board members. With this level of oversight gone, ICANN loses a good deal of its credibility.
Anyone thought about reviving the Boston Working Group, of which Karl was a prominent member?
First Internet Bank supports Mozilla very, very well. This almost makes up for the fact that the first version of their software didn't support Mozilla or Netscape at all.
The fact that they can get changes made to their software fairly easily in response to customer complaints / suggestions is not terribly surprising considering that their software vendor, until recently, was run by their CEO and Chairman of the Board.
A. You still have that CD you installed from, right? Let's just pop it in and see what it does. My guess is it'll display a EULA saying what I say the EULA says, and an accept button that needs to be pressed before you can go on.
Oh, you don't have the CD you installed from? OK, here's a CD that was pressed from the same master as the one that was sold to you. Same goes.
B. Me: "Did you use the program?" You: "Yes."
Then I show that you need to click Accept in the software to use the program.
You: "But there was a bug. I never saw the agreement or any 'Accept' button."
Me: "But you used the program anyway, even though you knew it was under license? And you didn't make any efforts to find out what the license terms were?"
You: "Yeah."
You can see where this is going. You'll never be able to prove that the EULA you saw said something different than I say, since you and I both know it said the same thing.
Now, what happens if there was actually a bug and you actually never saw or accepted the EULA? I'd say it's a tossup. This is just a guess; there's no case law on point that I know of. If there was any material along with the software indicating that it was subject to license, you'd probably lose; it would probably then be your responsibility to find out what the license terms were, and not use the software until you were successful. If nothing ever said it was subject to license, you'll probably win, since you had nothing telling you it was subject to license.
If you say there was a bug, it'll be on you to prove that there was. If you can reproduce it, you're probably home free on that point.
You raise good issues. However, things are not precisely as you state (or, perhaps, as they should be).
1) You assume a person reads an EULA. Even though a contract can still hold up if you don't read it, you're still required to sign it. If you never read an EULA or agree to it through a click, then how are you agreeing to it? Simply because they say "By using this product, you agree to our terms"?
It doesn't matter if the person reads the EULA, mostly because there's really no way to prove whether or not the person read the EULA. In this context, clicking "accept" is as good as a signature. If you're curious, see ProCD v. Zeidenberg, one of the first clickwrap cases. It's a very good opinion reasoning why clickwraps should be binding.
2) Another problem with EULAs are many of the corporate ones are too one-sided. They're not responsible for anything, but you're fully responsible to follow all their rules. Some even say you can't even talk about the product or take pictures of it or anything without permission, but that they can use your information for their company's marketing research without your permission to do so. (that is, they can use it to market you magazines whether or not you asked for them)
They are definitely "one-sided" in that one side has more responsibilities to the other side. However, it's not true that you're just signing away your rights for nothing; if you were, there would be no binding contract. You're signing away your rights to do certain things in exchange for them letting you use their software. The right to use their software does not cost just what you pay for the box at the store; it costs what you pay for the box at the store PLUS your agreement to follow the license terms.
3) You don't need to be 18 to buy many EULA products, and to have a contract valid, either a person 18 or older must agree to it, or the parent or guardian of that under-18 person must agree to have that person agree. When a 17 year old purchases an Xbox and takes it home, goes through the licensing agreements on his own, then starts playing, how can Microsoft say the EULA can still affect him?
Good one. I'm not sure. There are some kinds of contracts that minors can make, but I don't think this is one of them. If there's no contract, it's possible that the minor might not be held to the license terms, and we'll have to rely on under-18ers to do our dirty work. On the other hand, it's possible that the minor can't assert the right to USE the program at the same time as they assert the right NOT TO BE BOUND to the terms of the license agreement. Anybody have a better grasp on this area? I don't know if there have been any minor-clickwrap cases. Same goes for English-illiterate clickwrap cases; I just don't know if anyone's litigated it yet.
But again, EULAs are hardly contracts in the sense of contracts, but more of agreements that you won't do bad things to the company issuing the product. I can't wait until EULAs are struck down and normal copyright laws apply to the products (or patents to hardware).
They're definitely contracts, in any legal sense of the word. It sucks (I think first sale doctrine should apply, and there should be some consumer-software default rules set legislatively that are hard for software companies to EULA around), but that's how it is.
In the letter, they refer to AOL as their "client" and say that they "represent AOL" in these matters. They can't do that if AOL isn't really their client. If it turns out that AOL is in fact not their client, Peng will have a cause of action against Arent Fox. But Arent Fox aren't that stupid; I'm pretty sure they're actually retained by AOL.
Here's my guess: AOL has retained Arent Fox to defend their trademarks, etc., and to send out nastygrams demanding compliance. "We will advise AOL of its available remedies" (which is what the letter says, very different from "they will inform AOL of their action") doesn't mean "We'll go tell on you," but rather, "we will give legal advice to our client about what actions our client should take."
So it's probably not AOL directly initiating this, but it's not some fee-finding trademark-chaser who's going to show up at AOL's door with a possible suit. AOL has almost certainly asked them to find people to sue (or, at least, to find people to send nastygrams to); they're not doing it on their own.
Slashdot Mirror
I like it!
But actually, it doesn't have a fancy latin name: it's just called "mailing of unordered merchandise". The federal statute is 39 U.S.C. 3009, and it was cited and analyzed at length in the judge's opinion (linked to from the EFF press release). The statute is designed to combat exactly this sort of scam: a company sends you something you didn't ask for, then imposes conditions on your ownership of it (like saying you can't sell it, or saying you have to pay for it).
Joe Gratz
(attorney for the defendant in UMG v. Augusto, but speaking here only for himself)
Right, except that it's the establishment, not the performer, that's liable for the infringement. (This is an old rule which, I think rightly, recognizes that it's the establishment that's making the money and that one shouldn't go after the poor musician.) The case that comes to mind is Herbert v. Shanley, which was ASCAP's first Supreme Court case back in 1917:
http://supreme.justia.com/us/242/591/case.html
Right, that's what they do before they sue. They go in and write down what was played.
As for contracts restricting what bands can play -- if the bar owner is sophisticated enough to think of writing (and then actually write and execute) such a contract, they're almost certainly sophisticated enough to figure out that the amount the PROs charge bars is very small compared to the value added by the ability to play any song the band wants. (It's really not that much money -- less than one good night's register ring pays for a whole year, I think.)
Also, the contract wouldn't be a defense to an infringement action by ASCAP -- it would just allow the bar owner to sue the band to pay back what he had to pay ASCAP. Which is not much help, as bands that play in bars are not particularly known for their financial stability and prompt repayment of debts.
Great question!
t ml
The short version is that because ASCAP, BMI, and SESAC (known as PROs, or Performance Rights Organizations) are all private companies that are, at their core, really just bunches of copyright holders collecting together, they measure usage and divide up money however they want. They all do it differently, based on different data. ASCAP, for example, owns (or at least invested heavily in) MediaGuide, a company that has computers listening to every radio station in most major markets in the country and using audio fingerprinting to make playlists of everything that's on. Some PROs require radio and TV stations to make lists of everything they play for a certain part of every year. I think some of them use SoundScan record sales data. And people putting on concerts sometimes have to (or at least are allowed to) submit lists of the songs played. They extrapolate from all that data to get a picture of everything that's getting played everywhere. The estimation doesn't have to be perfect -- it just has to be good enough to satisfy a majority of the votes among the copyright holders who run the PRO. In practice, there are pretty complicated formulas, and I think it generally works on a "points" system. (You get more points for having your song played on NBC than on your local college radio station, etc.)
As for payments, it's all blanket licenses -- Chevy's, for example, pays a flat fee annually that's negotiated based on the ways Chevy's uses music. For example, an establishment with live music every night is likely to pay more than an establishment that plays the radio. (Ever wonder why some chain restaurants have stupid non-Happy Birthday birthday songs? It's to lower their ASCAP fee.)
Want to know more? Dig around this info about the ASCAP payment system: http://www.ascap.com/about/payment/paymentintro.h
First of all: IAAL, but this ain't legal advice.
1. This is nothing new. Public performances have had to be licensed since right around 1900, and ASCAP has been collecting fees for blanket licenses since 1914. This is not a new campaign designed to squelch independent musicians, as some comments have intimated.
2. This isn't controversial or surprising. It's not an issue of free speech or fair use, at least as far as public performances in profit-making business establishments are concerned. The EFF and the ACLU, I suspect, wouldn't be interested -- and neither would some random Congressman be shocked to have to pay ASCAP/BMI/SESAC fees, as one comment suggested. Maybe it would be good to allow unlicensed performances of music in business establishments, but that hasn't been the law for a very long time.
3. My sense is that around a dozen businesses decide to "fight" blanket license fees each year, thinking that somehow they won't end up having to pay or that the licenses aren't needed in order to play copyrighted songs in their establishments. They always lose.
4. ASCAP, BMI, and SESAC have occasionally been accused of "shaking down" businesses that really don't play any music for which they need a license -- like, say, bars that only play traditional Irish songs that are in the public domain. If those stories are true, the shakedowns are bad, wrong, and potentially liability-producing. (See also 17 USC 110.)
If you still want to be mad at somebody (and there may be good reason to be mad about some of this, just not most of it), at least be mad at the right people: ASCAP, BMI, and SESAC, who work as the agents of owners of copyright in musical works (not sound recordings). The RIAA is a group of copyright owners in sound recordings, and has nothing to do with this (except that some of the music publishers and some of the record labels are commonly owned).
First, it looks like the database files are already GPL'd. I'm not sure what you would want to do with the data that isn't allowed by the GPL.
Second, if you want to do something with the database that isn't allowed by the GPL (however the GPL applies to databases), you might want to ask your lawyer whether the freedb database files contain any copyrightable expression, given that the titles themselves are not copyrightable and much of their arrangement may be functional. I haven't looked closely at the files, but it would be worth investigating if for some reason you really wanted to make a derivative work of the database files without GPLing the result.
IAAL, but this is definitely not legal advice.
More documents and analysis on the TigerDirect v. Apple lawsuit are available here.
You're wrong, and here's why.
While it's true that there will be plenty of comments from copyright holders and their lawyers in this proceeding, it isn't true that "the rest of us" will be drowned out. The point of a Notice of Inquiry (the formal name for the proceeding the Copyright Office has undertaken) is to create a *record* which they can refer to in later rulemaking and in their report to Congressional leaders. In general, if and when rulemaking time comes around, they'll have to respond to every significant public comment.
So if you have an experience that brings to the fore the problem with licensing orphan works, they'll have to at least weigh your situation if you comment. If you don't comment, they won't.
As to the Copyright Office not making the law -- this proceeding was requested by Hatch and Leahy, chairmen of the Judiciary Committee (which is in charge of copyright law). This is Congress trying to figure out where the problems are so it can fix them. If you want your story before Congress, you must comment.
And further, it's not completely clear that Congressional action would be required to fix the orphan work problem. While that would be the most obvious way, there may be ways to change Copyright Office regulations regarding registration to fix the problem -- no Congressional action needed.
So, bottom line: this is not a waste of time. This is our best chance to put our facts before the decisionmakers. File your comments today.
I downloaded PDFs of the complaint and the judge's order from PACER. They're definitely real, and they're linked from my blog:
o rrent-lawsuit-no-hoax/
http://www.joegratz.net/archives/2005/02/24/lokit
Scents and scent formulas aren't copyrightable, and are only rarely patentable. That's why knock-off perfumes are legal. So "warez glade" could be perfectly legal, though stinky.
A suggestion. Whatever electronics you end up using, wire out the play button to a big pushbutton you buy from these guys:
http://www.happcontrols.com/
They sell video game / amusement parts, and we used to buy all of our controls from them. They just don't break, even with a hundred eight-year-olds slamming their fists into them for six hours each day.
As for the electronics themselves, there's a right way and there's a cheap way. The right way is to use something like the Radio Design Labs FP-MR1, which is a bulletproof digital message repeater. It's exactly what you want, but it's $225 each. The cheap way is to try and find a CD player or MP3 player that can boot up right into behaving the way you want -- either repesting all the time with the big button wired to the "forward" button or playing then pausing, with the big button wired to the "play" button. Unfortunately, it's likely on the CD player side that the only players that will do what you want will be pro models, and will cost several hundred dollars each.
Good luck!
Oh, have no fear, if this ever gets into real, juicy discovery (rather than this "give us some shred of an idea of what you might be accusing us of" phase we're in now), Ransom Love will be deposed, as will all of the developers at Caldera who contributed code to the kernel. It's not a matter of being pissed off enough to go along with it; they won't have any choice. They'll be subpoenaed and under oath.
(as usual, IANAL; IAALS)
In case anybody's wondering, under Utah law here's what SCO will have to prove:
"To prove slander of title, a claimant must prove that (1) there was a publication of a slanderous statement disparaging claimant's title, (2) the statement was false, (3) the statement was made with malice, and (4) the statement caused actual or special damages." First Sec. Bank of Utah, N.A. v. Banberry Crossing, 780 P.2d 1253 (Utah 1989).
(1) and (4) are a piece of cake, but (2) will be a hotly contested contract interpretation question and (3) will be VERY hard to prove.
webcast + streamripper + cron + shell script
Records 4 or 5 shows for me every week. I'm never around for Says You or On The Media, but thanks to KUOW's shoutcast 96k stream and a couple lines of shell scripting, I can listen anytime or put it on a portable player to listen to while working out.
Only trouble is, people look at you weird when you're grinning wryly while listening to Says You and using the elliptical trainer at the same time.
No can do. I'm a law student with one of the "crack dealer" unlimited student accounts on both Lexis and Westlaw, and the license agreement for our accounts doesn't allow republication.
While the texts themselves are PD, and there would be no COPYRIGHT problem with republishing them stripped of headnotes and such, there would be a breach of contract problem, since we agreed not to use our accounts for anything but our own schoolwork.
I have a feeling that there are similar restrictions on "real" (non-student) accounts, plus the multiple dollars per document the downloads would cost with a "real" account.
That said, the texts of federal decisions from 1995 on, I think, are freely available in electornic form. Software to linkify and track citations would be easy. The catch is, quite honestly, that the copyrighted ancillary material added by Lexis and Westlaw -- headnotes, coding about what the citing case SAYS about the cited case, etc. -- is awfully useful. Having a big archive of all of the decisions is great and all, but without the editorial content, it's pretty useless. For instance, the commercial DBs can answer the query, "Show me all of the federal district court cases that cited and agreed with the case I'm viewing on whether a dog sniff of an apartment building hallway is a 'search' under the Fourth Amendment." (Not in natural language like that, of course.) A public DB will never do that, and I think that's needed for efficient legal research.
You're right, as long as the book was just under copyright and you didn't agree to any other license. If you did agree to some, say, shrinkwrap book license, you'd have to obey that license.
Here, the user is agreeing to a license before they have access to the files. They have to obey that license. Just by keeping and using the computer, they're agreeing to the licenses that came in the box, whether or not they read them. Hill v. Gateway 2000 decided this issue in 1997.
It's a good opinion, by a smart judge (Frank Easterbrook). Read it.
WHAT ARE YOU QUOTING?
The text of the bill is here. It doesn't say anything like that. Neither of the restrictions you discuss are in the bill.
This seems to me a perfectly good way to make an internet playpen without eating internet freedom. Please don't scaremonger.
IBM, perhaps unfortunately, would be promptly sued for trademark infringement if they did that, since Sun still holds a trademark on the phrase. I liked it better when, for once, relatively obscure bits of technical reality were lined up with marketing hype. Alas, no longer; the marketing hype lives on.
Seriously, I cannot believe that the rest of the world has not demanded that the US hand over control of ICANN to the UN.
Part of the point of ICANN was to avoid creating a new international treaty organization. I don't know that turning this all over to ISOC or IETF was ever really an option; the issue was simply too big. ICANN needs to be reined in, certainly, but having the DNS run by a subgroup of the International Telecommunications Union or by a new treaty organization would be a nightmare.
The big win of ICANN is that power stays with relatively clueful people (Dyson, Cerf, et al.) instead of representatives of major world governments. The really big win of ICANN was that the "people of the Internet" could elect even more clueful people to oversee the self-appointed board members. With this level of oversight gone, ICANN loses a good deal of its credibility.
Anyone thought about reviving the Boston Working Group, of which Karl was a prominent member?
First Internet Bank supports Mozilla very, very well. This almost makes up for the fact that the first version of their software didn't support Mozilla or Netscape at all.
The fact that they can get changes made to their software fairly easily in response to customer complaints / suggestions is not terribly surprising considering that their software vendor, until recently, was run by their CEO and Chairman of the Board.
For the curious, a FAQ on moral rights and their place in U.S. law is here.
In short, U.S. law provides very little moral rights protection, except for visual fine art.
OK! No problem. IANAL.
A. You still have that CD you installed from, right? Let's just pop it in and see what it does. My guess is it'll display a EULA saying what I say the EULA says, and an accept button that needs to be pressed before you can go on.
Oh, you don't have the CD you installed from? OK, here's a CD that was pressed from the same master as the one that was sold to you. Same goes.
B.
Me: "Did you use the program?"
You: "Yes."
Then I show that you need to click Accept in the software to use the program.
You: "But there was a bug. I never saw the agreement or any 'Accept' button."
Me: "But you used the program anyway, even though you knew it was under license? And you didn't make any efforts to find out what the license terms were?"
You: "Yeah."
You can see where this is going. You'll never be able to prove that the EULA you saw said something different than I say, since you and I both know it said the same thing.
Now, what happens if there was actually a bug and you actually never saw or accepted the EULA? I'd say it's a tossup. This is just a guess; there's no case law on point that I know of. If there was any material along with the software indicating that it was subject to license, you'd probably lose; it would probably then be your responsibility to find out what the license terms were, and not use the software until you were successful. If nothing ever said it was subject to license, you'll probably win, since you had nothing telling you it was subject to license.
If you say there was a bug, it'll be on you to prove that there was. If you can reproduce it, you're probably home free on that point.
It doesn't matter if the person reads the EULA, mostly because there's really no way to prove whether or not the person read the EULA. In this context, clicking "accept" is as good as a signature. If you're curious, see ProCD v. Zeidenberg, one of the first clickwrap cases. It's a very good opinion reasoning why clickwraps should be binding.
They are definitely "one-sided" in that one side has more responsibilities to the other side. However, it's not true that you're just signing away your rights for nothing; if you were, there would be no binding contract. You're signing away your rights to do certain things in exchange for them letting you use their software. The right to use their software does not cost just what you pay for the box at the store; it costs what you pay for the box at the store PLUS your agreement to follow the license terms.
Good one. I'm not sure. There are some kinds of contracts that minors can make, but I don't think this is one of them. If there's no contract, it's possible that the minor might not be held to the license terms, and we'll have to rely on under-18ers to do our dirty work. On the other hand, it's possible that the minor can't assert the right to USE the program at the same time as they assert the right NOT TO BE BOUND to the terms of the license agreement. Anybody have a better grasp on this area? I don't know if there have been any minor-clickwrap cases. Same goes for English-illiterate clickwrap cases; I just don't know if anyone's litigated it yet.
They're definitely contracts, in any legal sense of the word. It sucks (I think first sale doctrine should apply, and there should be some consumer-software default rules set legislatively that are hard for software companies to EULA around), but that's how it is.
Almost certainly not.
(Note: IANYAL. This is not legal advice.)
In the letter, they refer to AOL as their "client" and say that they "represent AOL" in these matters. They can't do that if AOL isn't really their client. If it turns out that AOL is in fact not their client, Peng will have a cause of action against Arent Fox. But Arent Fox aren't that stupid; I'm pretty sure they're actually retained by AOL.
Here's my guess: AOL has retained Arent Fox to defend their trademarks, etc., and to send out nastygrams demanding compliance. "We will advise AOL of its available remedies" (which is what the letter says, very different from "they will inform AOL of their action") doesn't mean "We'll go tell on you," but rather, "we will give legal advice to our client about what actions our client should take."
So it's probably not AOL directly initiating this, but it's not some fee-finding trademark-chaser who's going to show up at AOL's door with a possible suit. AOL has almost certainly asked them to find people to sue (or, at least, to find people to send nastygrams to); they're not doing it on their own.