First, you are correct inasmuch as your post implies that copyright applies regardless whether a creator has sought its protection. Unlike a patent, copyright protections attach as soon as a creative work is set into a tangible form.
Second, though, the original poster is correct that copyright cannot apply to unpublished or unrevealed works. That is, a story that one creates and recites without fixing to tangible form is not protected by copyright, but the same story published in text (or even recorded into some other tangible form) is protected.
One point, without comment on the legal issues raised by Judge Bates's ruling:
I wonder what the significance of 600 songs per day could be. The RIAA selected this user, presumably in order to make an example of someone. I can think of a few scenarios in which downloading 600 songs in one day would (1) not require too much effort; and (2) not reflect the sort of commercial theft that clearly exceeds the scope of fair use.
The average dorm-room music afficionado, enjoying broadband access for the first time in his life thanks to the college network, for example, might be trying to find mp3s of all of his favorite songs, some owned on CD, others not. This is a far different case from the person downloading massive numbers of files with the intention of creating bootleg mixes for commercial sale.
Does this signal an intention to begin legal action against pure consumers of music, and, if so, is the frequency of this downloader's Kazaa use representative of: (1) the minimum needed to garner the RIAA's attention; (2) an average use of Kazaa, as calculated by the RIAA in order to strike fear into the heart of the average person who shares music files; or (3) a heavy user who the RIAA would presume to be beyond any colorable fair use defense?
News of the Weird (Companies)
on
F'd Companies
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· Score: 4, Interesting
Yah, I can read the "News of the Weird" in the local alternative newspaper every couple of months or so, but the stories about stupid criminals, odd names, and the curious practices extant in certain foreign nations become tedious in the cumulative. So, ANOTHER person with the middle name "Ray" or "Wayne" is a murderer. That's funny-strange; it's not funny-haha.
How long could one read about f'd companies? Are there really that many interesting archetypes? Don't the stories all blend together over time? Is it that successful companies are all the same, but unsuccessful companies are each f'd in their own individual ways?
I've never worked in the Valley, and I am not a web designer, but it seems that the stories of failure would become pretty monotonous after a while. Three hundred-odd pages? Is there enough sarcasm or cuss-words to make the book interesting for that long?
Heck, I'll buy the thing because I like the web site, but I get the feeling I'd save a couple of sawbucks if I just looked through the archives online.
Not always. There is a complicated analysis -- the Blockburger test -- that governs whether the conduct of an accused may qualify as more than one offense for purposes of double jeopardy.
The conspiracy and civil rights charges often count as different offenses because they contain elements that are not present in garden-variety crimes. The civil rights charge, however, may be leveled only against persons acting under color of state law, and it probably does not apply to the criminal acts of the average Slashdot reader.
There are two significant events for purposes of the Double Jeopardy Clause: first, jeopardy attaches in most cases when the fact-finder (the jury, for example) begins to receive evidence; second, jeopardy terminates with the determination that the State has or has not proved the merits of the case against the accused.
The whole point of "double jeopardy" is that once a person has endured this process, he or she may not be put the stress and expense of going through it again for the same offense.
is the grip that technology, disregard for intellectual property, or a consumership that is less respectful thereof causes a decrease in sales. I hate it when artists this argument for two reasons: (1) they shouldn't accuse their fans and supporters of being so shady; and, more important, (2) it's a cheap excuse for the flatline or drop in the quality of artistic content. Heck, The Thong Song was number one on Casey's Top 40 a year or so ago, and the RIAA is complaining that Napster reduced its CD sales? That's like the Marlboro Man blaming lung cancer on working at a gas station as a teenager.
EULAs are contracts at the moment they are accepted, as are any sorts of bargained exchange between two or more persons with the capacity to enter an agreement. If you are concerned that an EULA will infringe upon your rights, you have a few options:
1. Don't use the good or service whose terms of use are governed by the EULA.
2. Try to get in touch with a person who has the authority to alter the terms of the EULA. (Sure, good luck if you are an individual gamer, but if you run a corporation that purchases a lot of software from a particular manufacturer, you're bargaining power will be greater, so this option is not entirely hypothetical.)
3. Breach the EULA, realizing that you will be liable to the other party for damages or other legal relief (almost certainly not imprisonment, as the breach of a contract is a civil affair).
That's not what is meant by "consideration." When the term is used in a legal sense, it refers not to the amount of attention that a party gives to the contract before consenting to be bound by its terms; rather, consideration is the object of the exchange. For example, if I purchase a sack of potatoes from you in exchange for a red scarf, there is consideration. If I state that I will give you a sack of potatoes in exchange for nothing -- or, alternatively, in exchange for your agreement that you would do something that you already were legally bound to do, like obey the law -- then there is no consideration and our agreement (such that it is) is not binding upon us.
First, the jurisdiction of the court: the case was decided by a federal district court, a trial judge within the federal system. The Northern District of California, where the case was decided, is well respected for its expertise in matters of technology, having been the site of several important IP lawsuits and serving currently as the home to Silicon Valley. That said, the decision is binding authority only in the Northern District of California (although courts in other parts of the country may find it persuasive), and it has not been tested on appeal.
Second, the implications of the decision: the court did not decide the validity of a generally applicable statute or a regulation; it only ruled that in the facts of this case, the EULA was not procedurally deficient (for failing to give the user notice of its terms, for example) and was not substantively unreasonable (for imposing any terms that were fundamentally unfair, for example). The courts decide thousands of cases interpreting contracts each year, and they often do so by analogy to precedent. Accordingly, this decision might have no immediate impact upon the way you use software or review an EULA, but so long as this issue recurs, other judges likely will use the opinion in this case as the standard that they accept or from which they find reason to depart.
Third, the mutability of the decision: contract law is mostly state law, and most judicial decisions about the law of contracts may be overturned by the legislature. In the fields of, for example, sales, financing, and construction law, there have been enough disputes across many jurisdictions that most states have found it beneficial to enact a uniform law governing the rights of contracting parties. (The Uniform Commercial Code is the best known example of this.) Should this be a sufficiently momentous decision -- I don't think it is -- or become a sufficiently important issue -- and maybe it will -- then one can count upon the legislatures and the law professors to get involved.
Makes no difference, really. In a jury trial, the jurors would apply the applicable law -- the content of which is the more important aspect of this case -- to the facts of the dispute as they find them. The lawyers on either side still would compile, and the judge would approve, the charge given to jurors before deliberation, with the backstop that the judge could ignore a verdict that clearly is not accordance with that law. (In fact, most of the relevant facts may be established in other litigation, i.e., the suit by the content makers against Replay, without the need for independent findings here). Better to hope for a smart and tech-savvy judge than to wish for a jury.
Pen on paper goes in the circular file. Do you think that an intern is going to waste his time trying to make out your chicken scratch? I would recommend instead that you print up some nice letterhead and check for typos before you send your missive out the door. Also, you'll probably save yourself a little bit of time.
It's remarkable that a post like gets modded up all the way to +3 "insightful." The truth of the matter is, some contracts signed under deceptive circumstances are and should be valid. If crying deceptive circumstances were a way to avoid contractual liability, we'd be up to our ears in litigation every time a bright lawyer could convince a dumb judge or jury that an agreement was too difficult or too time consuming to grok.
Most EULAs, most TOSs, are, I think, deceptively complicated for the average law person, particularly the typically tech-dumb one. Those contracts are valid. Usually. A lot of sales pitches are deceptive and very valid, although you might be able to run to your attorney general or hire a tort attorney if the product you purchased is too far off the mark.
And a clause in any contract -- it does not appear in "most"; it's likely that the most common contracts are UCC forms, and they do not contain them -- that says "capice" will only provide cover insofar as a court determines that the clause had the effect of prompting the party charged to confirm that he understood, which will not get one past most prolix adhesion contracts, for example.
If we are going to pick nits, I'll add one, too: I cannot imagine that the presence of LEOs adds "levity" -- lightness of speech or manner -- to any event. Moreover, due process is of no concern here; the Fourth Amendment prohibition against unreasonable or warrantless searches, not the Fifth Amendment, is the applicable provision of the Constitution.
That said, the Minnesota case is wrong, and I don't expect that it will last very long.
Good post. One correction: a corporation may be indicted, prosecuted, and convicted; in fact, the incidence of corporate prosecution is on the rise, a trend of which the recent indictment of Arthur Andersen is a part.
I dunno. I think that young teens and preteens would go ape over a gadget like this, particularly if it has the capability to beam messages back and forth. I know at least a couple of twelve year olds who use regularly old Palm IIIs, passed along from old family members. I will concede that my familiarity with that age cohort is not as great as the marketing wizards at Fisher Price, however.
They call it progress ...
on
PDAs For Kids
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· Score: 1
Fisher-Price calls it a "creativity system," and its raison d'etre is drawing on the monochrome screen with the attached stylus. The idea for the toy came from watching kids make drawings on their parents' Palms.
I recall the old pull-back, carbon-paper drawing pads with which I used to play when I was younger. One could purchase them at the toy store for less than a dollar. I suppose that if Fisher Price had called them "creativity systems" back then, they could have charged a lot more for them.
Gosh. Think about what better marketing could have done for Etch-a-Sketch. They'd be standard issue on university campuses had they that kind of billing a couple of decades ago.
There does not need to be LEGISLATION in this matter. There needs to be education. People should not just download and run software from untrusted sites. EVERYONE knows that. So in this case, I do not shed a tear.
If there is no legislation on the matter, that doesn't mean that the Government will not intervene on behalf of those who claim to have been duped by a software developer or an ISP. There is no reason why a claim that an EULA or a TOS did not foreseeably permit its drafter to use one's computer in a certain way would not be resolved by the courts -- i.e., one judge, instead of many legislators -- under principles of common law -- i.e., amorphous notions that give that one judge a lot of discretion.
If you think that less government intervention is preferable to more, then you might prefer that the Congress legislate on the matter, which could at least take the matter from the reach of state judges with parochial interests in podunk towns.
No, not likely. Unfortunately, the average citizen has no standing to participate in suits like this, not until the weight of the government is brought against him or her, at least.
Why don't you just cancel out of the download? If the site won't let me continue without this invasive (and potentially deleterious) form of advertising, then I cannot think of a benefit of visiting the site that is of sufficient value to offset that cost. I mean, if you're on a dial-up there isn't much point in downloading anything in the first place, no?
A case like Napster likely would not go to trial at all. Trials are in order only when there are genuine disputes of material fact that would prevent a judge from deciding a case as a matter of law. So, if both Napster and the RIAA agree on all of the relevant facts -- Napster is a P2P network; it has many users; some of those users exchange copyrighted works -- than the judge can apply the law to those facts, without the need for a jury to make, for example, credibility determinations or other factfinding.
By what basis do you surmise that a limited time must be less than the natural life of the creator? In context, the Copyright Clause reads:
"To promote the progress of science and the useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries"
Even at the time of the drafting, a right could outlast its owner (being devised by will or otherwise passed along to one's heirs and assigns). I am not aware of any evidence that the Framers did intended for rights in intellectual property to be any different. After all, what incentive would a very old inventor or author have to create works (in the advancement of "science and the useful arts") if his creation or discovery would become practically worthless upon his death?
There are plausible arguments that the current terms of copyright are unconstitutional, but not for the reasons you describe.
Think of the unwashed individuals who own domains. They register their domains every two years or so, or perhaps they sign on with Verisign for a ten year stint. By the time they realize that they've been had (if they realize that they've been had), they are already locked into a long-term relationship with the company. I registered my domains some time ago with Network Solutions, and I simply had not considered the possibility at the time that there would be more than option through which to renew.
Verisign probably thinks that it is in its benefit to cannibalize in the short term. To paraphrase Keynes, in the long term (measured by the lifespan of a domain registrar), Verisign is dead.
I advise strongly against looking over google.com for legal guidance. As the description to which you refer indicates, promissory estoppel is a doctrine by which a promise that otherwise would not be legally binding -- for lack of consideration, a topic of some complexity, but which subject I would be happy to discuss further, if you are interested -- will be enforced to prevent the injustice of one party having reasonably relied upon the assertions of another. It would have no application to the circumstances you describe.
Slashdot Mirror
Which clauses do you claim are bluntly unconstitutional? And you'd better have a list of many.
First, you are correct inasmuch as your post implies that copyright applies regardless whether a creator has sought its protection. Unlike a patent, copyright protections attach as soon as a creative work is set into a tangible form.
Second, though, the original poster is correct that copyright cannot apply to unpublished or unrevealed works. That is, a story that one creates and recites without fixing to tangible form is not protected by copyright, but the same story published in text (or even recorded into some other tangible form) is protected.
One point, without comment on the legal issues raised by Judge Bates's ruling:
I wonder what the significance of 600 songs per day could be. The RIAA selected this user, presumably in order to make an example of someone. I can think of a few scenarios in which downloading 600 songs in one day would (1) not require too much effort; and (2) not reflect the sort of commercial theft that clearly exceeds the scope of fair use.
The average dorm-room music afficionado, enjoying broadband access for the first time in his life thanks to the college network, for example, might be trying to find mp3s of all of his favorite songs, some owned on CD, others not. This is a far different case from the person downloading massive numbers of files with the intention of creating bootleg mixes for commercial sale.
Does this signal an intention to begin legal action against pure consumers of music, and, if so, is the frequency of this downloader's Kazaa use representative of: (1) the minimum needed to garner the RIAA's attention; (2) an average use of Kazaa, as calculated by the RIAA in order to strike fear into the heart of the average person who shares music files; or (3) a heavy user who the RIAA would presume to be beyond any colorable fair use defense?
Yah, I can read the "News of the Weird" in the local alternative newspaper every couple of months or so, but the stories about stupid criminals, odd names, and the curious practices extant in certain foreign nations become tedious in the cumulative. So, ANOTHER person with the middle name "Ray" or "Wayne" is a murderer. That's funny-strange; it's not funny-haha.
How long could one read about f'd companies? Are there really that many interesting archetypes? Don't the stories all blend together over time? Is it that successful companies are all the same, but unsuccessful companies are each f'd in their own individual ways?
I've never worked in the Valley, and I am not a web designer, but it seems that the stories of failure would become pretty monotonous after a while. Three hundred-odd pages? Is there enough sarcasm or cuss-words to make the book interesting for that long?
Heck, I'll buy the thing because I like the web site, but I get the feeling I'd save a couple of sawbucks if I just looked through the archives online.
Not always. There is a complicated analysis -- the Blockburger test -- that governs whether the conduct of an accused may qualify as more than one offense for purposes of double jeopardy.
The conspiracy and civil rights charges often count as different offenses because they contain elements that are not present in garden-variety crimes. The civil rights charge, however, may be leveled only against persons acting under color of state law, and it probably does not apply to the criminal acts of the average Slashdot reader.
You mean "Then, jeopardy has terminated."
There are two significant events for purposes of the Double Jeopardy Clause: first, jeopardy attaches in most cases when the fact-finder (the jury, for example) begins to receive evidence; second, jeopardy terminates with the determination that the State has or has not proved the merits of the case against the accused.
The whole point of "double jeopardy" is that once a person has endured this process, he or she may not be put the stress and expense of going through it again for the same offense.
is the grip that technology, disregard for intellectual property, or a consumership that is less respectful thereof causes a decrease in sales. I hate it when artists this argument for two reasons: (1) they shouldn't accuse their fans and supporters of being so shady; and, more important, (2) it's a cheap excuse for the flatline or drop in the quality of artistic content. Heck, The Thong Song was number one on Casey's Top 40 a year or so ago, and the RIAA is complaining that Napster reduced its CD sales? That's like the Marlboro Man blaming lung cancer on working at a gas station as a teenager.
EULAs are contracts at the moment they are accepted, as are any sorts of bargained exchange between two or more persons with the capacity to enter an agreement. If you are concerned that an EULA will infringe upon your rights, you have a few options:
1. Don't use the good or service whose terms of use are governed by the EULA.
2. Try to get in touch with a person who has the authority to alter the terms of the EULA. (Sure, good luck if you are an individual gamer, but if you run a corporation that purchases a lot of software from a particular manufacturer, you're bargaining power will be greater, so this option is not entirely hypothetical.)
3. Breach the EULA, realizing that you will be liable to the other party for damages or other legal relief (almost certainly not imprisonment, as the breach of a contract is a civil affair).
That's not what is meant by "consideration." When the term is used in a legal sense, it refers not to the amount of attention that a party gives to the contract before consenting to be bound by its terms; rather, consideration is the object of the exchange. For example, if I purchase a sack of potatoes from you in exchange for a red scarf, there is consideration. If I state that I will give you a sack of potatoes in exchange for nothing -- or, alternatively, in exchange for your agreement that you would do something that you already were legally bound to do, like obey the law -- then there is no consideration and our agreement (such that it is) is not binding upon us.
A few points about this decision bear repeating.
First, the jurisdiction of the court: the case was decided by a federal district court, a trial judge within the federal system. The Northern District of California, where the case was decided, is well respected for its expertise in matters of technology, having been the site of several important IP lawsuits and serving currently as the home to Silicon Valley. That said, the decision is binding authority only in the Northern District of California (although courts in other parts of the country may find it persuasive), and it has not been tested on appeal.
Second, the implications of the decision: the court did not decide the validity of a generally applicable statute or a regulation; it only ruled that in the facts of this case, the EULA was not procedurally deficient (for failing to give the user notice of its terms, for example) and was not substantively unreasonable (for imposing any terms that were fundamentally unfair, for example). The courts decide thousands of cases interpreting contracts each year, and they often do so by analogy to precedent. Accordingly, this decision might have no immediate impact upon the way you use software or review an EULA, but so long as this issue recurs, other judges likely will use the opinion in this case as the standard that they accept or from which they find reason to depart.
Third, the mutability of the decision: contract law is mostly state law, and most judicial decisions about the law of contracts may be overturned by the legislature. In the fields of, for example, sales, financing, and construction law, there have been enough disputes across many jurisdictions that most states have found it beneficial to enact a uniform law governing the rights of contracting parties. (The Uniform Commercial Code is the best known example of this.) Should this be a sufficiently momentous decision -- I don't think it is -- or become a sufficiently important issue -- and maybe it will -- then one can count upon the legislatures and the law professors to get involved.
Makes no difference, really. In a jury trial, the jurors would apply the applicable law -- the content of which is the more important aspect of this case -- to the facts of the dispute as they find them. The lawyers on either side still would compile, and the judge would approve, the charge given to jurors before deliberation, with the backstop that the judge could ignore a verdict that clearly is not accordance with that law. (In fact, most of the relevant facts may be established in other litigation, i.e., the suit by the content makers against Replay, without the need for independent findings here). Better to hope for a smart and tech-savvy judge than to wish for a jury.
Pen on paper goes in the circular file. Do you think that an intern is going to waste his time trying to make out your chicken scratch? I would recommend instead that you print up some nice letterhead and check for typos before you send your missive out the door. Also, you'll probably save yourself a little bit of time.
It's remarkable that a post like gets modded up all the way to +3 "insightful." The truth of the matter is, some contracts signed under deceptive circumstances are and should be valid. If crying deceptive circumstances were a way to avoid contractual liability, we'd be up to our ears in litigation every time a bright lawyer could convince a dumb judge or jury that an agreement was too difficult or too time consuming to grok.
Most EULAs, most TOSs, are, I think, deceptively complicated for the average law person, particularly the typically tech-dumb one. Those contracts are valid. Usually. A lot of sales pitches are deceptive and very valid, although you might be able to run to your attorney general or hire a tort attorney if the product you purchased is too far off the mark.
And a clause in any contract -- it does not appear in "most"; it's likely that the most common contracts are UCC forms, and they do not contain them -- that says "capice" will only provide cover insofar as a court determines that the clause had the effect of prompting the party charged to confirm that he understood, which will not get one past most prolix adhesion contracts, for example.
If we are going to pick nits, I'll add one, too: I cannot imagine that the presence of LEOs adds "levity" -- lightness of speech or manner -- to any event. Moreover, due process is of no concern here; the Fourth Amendment prohibition against unreasonable or warrantless searches, not the Fifth Amendment, is the applicable provision of the Constitution.
That said, the Minnesota case is wrong, and I don't expect that it will last very long.
Good post. One correction: a corporation may be indicted, prosecuted, and convicted; in fact, the incidence of corporate prosecution is on the rise, a trend of which the recent indictment of Arthur Andersen is a part.
I dunno. I think that young teens and preteens would go ape over a gadget like this, particularly if it has the capability to beam messages back and forth. I know at least a couple of twelve year olds who use regularly old Palm IIIs, passed along from old family members. I will concede that my familiarity with that age cohort is not as great as the marketing wizards at Fisher Price, however.
I recall the old pull-back, carbon-paper drawing pads with which I used to play when I was younger. One could purchase them at the toy store for less than a dollar. I suppose that if Fisher Price had called them "creativity systems" back then, they could have charged a lot more for them.
Gosh. Think about what better marketing could have done for Etch-a-Sketch. They'd be standard issue on university campuses had they that kind of billing a couple of decades ago.
If there is no legislation on the matter, that doesn't mean that the Government will not intervene on behalf of those who claim to have been duped by a software developer or an ISP. There is no reason why a claim that an EULA or a TOS did not foreseeably permit its drafter to use one's computer in a certain way would not be resolved by the courts -- i.e., one judge, instead of many legislators -- under principles of common law -- i.e., amorphous notions that give that one judge a lot of discretion.
If you think that less government intervention is preferable to more, then you might prefer that the Congress legislate on the matter, which could at least take the matter from the reach of state judges with parochial interests in podunk towns.
No, not likely. Unfortunately, the average citizen has no standing to participate in suits like this, not until the weight of the government is brought against him or her, at least.
Why don't you just cancel out of the download? If the site won't let me continue without this invasive (and potentially deleterious) form of advertising, then I cannot think of a benefit of visiting the site that is of sufficient value to offset that cost. I mean, if you're on a dial-up there isn't much point in downloading anything in the first place, no?
A case like Napster likely would not go to trial at all. Trials are in order only when there are genuine disputes of material fact that would prevent a judge from deciding a case as a matter of law. So, if both Napster and the RIAA agree on all of the relevant facts -- Napster is a P2P network; it has many users; some of those users exchange copyrighted works -- than the judge can apply the law to those facts, without the need for a jury to make, for example, credibility determinations or other factfinding.
By what basis do you surmise that a limited time must be less than the natural life of the creator? In context, the Copyright Clause reads:
"To promote the progress of science and the useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries"
Even at the time of the drafting, a right could outlast its owner (being devised by will or otherwise passed along to one's heirs and assigns). I am not aware of any evidence that the Framers did intended for rights in intellectual property to be any different. After all, what incentive would a very old inventor or author have to create works (in the advancement of "science and the useful arts") if his creation or discovery would become practically worthless upon his death?
There are plausible arguments that the current terms of copyright are unconstitutional, but not for the reasons you describe.
Is this the same Bose of "wave radio" fame? Pardon my ignorance about even rudimentary scientific concepts and ideas.
Think of the unwashed individuals who own domains. They register their domains every two years or so, or perhaps they sign on with Verisign for a ten year stint. By the time they realize that they've been had (if they realize that they've been had), they are already locked into a long-term relationship with the company. I registered my domains some time ago with Network Solutions, and I simply had not considered the possibility at the time that there would be more than option through which to renew.
Verisign probably thinks that it is in its benefit to cannibalize in the short term. To paraphrase Keynes, in the long term (measured by the lifespan of a domain registrar), Verisign is dead.
I advise strongly against looking over google.com for legal guidance. As the description to which you refer indicates, promissory estoppel is a doctrine by which a promise that otherwise would not be legally binding -- for lack of consideration, a topic of some complexity, but which subject I would be happy to discuss further, if you are interested -- will be enforced to prevent the injustice of one party having reasonably relied upon the assertions of another. It would have no application to the circumstances you describe.