There are several ways that the court could resolve this in Skylarov's favor, but still retain the possibility of future prosecutions.
Nothing ever really goes to court proper. Most courts will attempt to bounce cases like this on grounds with the least precedential value if at all possible. It decreases the chances of a dramatic reversal.
A committee of semi-literate chimps. Their editorials are written by a committee, and one can usually identify the primary author by the voice of a piece.
Don't bother patting The Washington Post on the back just yet. They are notoriously uninformed, and their editorials appear to regurgitate conventional wisdom rather than taking a leadership role. In other words, as soon as somebody at a D.C. cocktail party figures out that he or she may benefit somehow, someway, under the DMCA, the Post will turn tail, without explanation or apology.
You're only selectively quoting the statute, which reads:
"In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs."
18 U.S.C. 3161(c)(1). Barring waiver or special circumstances, the seventy-day clock does not begin to run until Mr. Sklyarov's arraignment.
Not quite. Among the losers in the domain dispute sweepstakes were registrants such as www.bodacious-tatas.com, losing to a Sri Lankan company owned by the Tata family. Does that make sense?
This is nothing more than a boondoggle, a misallocation of resources. Why don't they also give everyone a yourname.houston.tx.us web page, or any other service that is easily available gratis for everyone whom would take advantage of it.
If the private sector is performing a service amicably -- e.g., providing free e-mail accounts to anyone with web access -- why would a locality waste even a tiny bit of resources to accomplish the same?
The odd legal twist on this -- that reason that I am even posting on this thread -- is that the Houston e-mail account doubtlessly will be more constrained than AOL or its ilk in what it can and cannot do to subscribers.
For example, let's say that some enterprising young tech at Houston's e-mail server decides to start reading e-mail at random, with the intention of invading privacy. That could satisfy the state action requirement necessary to make out a constitutional claim, with attorneys fees available for even a suit that garners only nominal damages.
For a more dramatic example, let's say that the e-mail system is administered in a way that creates a disparate impact on racial minorities. Let's say that some nut commandeers a server and spams hatemail across the ether. The state could be liable where a private actor would not be. (The constitutional generally only prevents state action that impinges on a citizen's rights, not the same conduct undertaken by a private actor.)
That's without even touching on the potential liability under Title VI and other federal statutes if the e-mail program employs federal funds.
If President Bush can get anyone to rework the '96 Act, it will be a sign of divine intervention, rather than a successful demonstration of his leadership prowess.
In the last century, there have been two major federal overhauls of federal communications policy -- the '34 and the '96 Acts. The '96 Act was the product of at least two dozen abortive attempts to enact the reforms, twenty years of FCC notice-and-comment rulemaking that set the predicates for the Act, and at least one federal judge in Washington running the nation's communications policy in the interim.
Do you think that George W. Bush could really "get the FCC and/or Congress" to fix the problems in the Act now? Do you think that someone with FDR's political acumen, Stephen Hawkings' intellectual might, and my dashingly handsome good looks could even accomplish that task?
You are trying to prove an affirmative point (protected legal status of parody as a general rule) through the occurrence of an anecdotal negative (the alleged lack of lawsuits against Hustler)? Do you understand the flaw in that logic? That a legal remedy was not sought (or was not pursued past settlement) does not indicate the non-existence of a legal wrong.
In case the answer is no, I will note that there are several cases alleging that Hustler Magazine engaged in slander, defamation, libel, or other so-called dignity torts when it published material that the magazine asserted was satire or parody. See, e.g., Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188 (9th Cir. 1989).
As for your other comments about what you consider to be fraud and what you consider to have been bad investments on Mastercard's part, I share your disagreement with the system. However, the fact is that the marginal loss caused by people who cancelled their Mastercards pales in comparison to the potential value of loss that Mastercard will face if they lose the rights to their intellectual property.
Imagine that you and I, as the Axelboldt & Lawyamike Credit Card company, decide to start a marketing campaign that appropriates the "priceless" campaign in its near totality. Maybe we would use the tagline "invaluable" instead of "priceless." When Mastercard brings suit to show that they owned the rights to that line of advertising, and when it is time for the judge or jury to calculate damages, don't you think the efforts that they expended to protect their IP would be relevant?
You still seem to miss the point: they do not want people to roll over, and they do not care if some self-styled IP James Dean laughs in their faces. All they want to do is prove that they tried to protect themselves, even from the most negligible threats. The effort -- and most definitely not the threat -- is what is important here.
Maybe a real life example would help:
If I were upset about your insinuating that I am a low-level corporate attorney, as you did in your post, I could send you an angry letter trying to make you retract your statement. (In the letter, I would include references to the fact that I am a judicial clerk for the most important judge in the country on tech issues right now.) My intent would be to change your behavior. That's what you appear to think Mastercard is doing. That's what you mock, right?
What Mastercard is actually doing has no such intent. They do not seek to change anyone's behavior, only to prove that they did not flinch from making efforts and spending money to protect what they consider to be valuable IP. In our analogy, it would be as if one of my high-powered attorney friends came up to me and said, Lawyamike, I read Twitter call you a low-level drone on Slashdot. I could reply that I sent you a nasty letter and talk smack about how you didn't get away with it, regardless of whether you laughed at my letter and immediately placed it in the circular file.
To summarize: Mastercard (and the rest of corporate America with the resources to do it) is sending nasty letters to prove that they sent the nasty letters, not to threaten or scare anybody. The fact that you or me or RHF's moderator laughs at the letter doesn't matter. The fact that they have a log of all of the letters, postage, and labor hours spent on protecting their IP, on the other hand, that could come in handy should they seek to protect their IP from a real infringer.
First of all, satire or parody is not always protected. This is one of those ideas -- like "possession is nine-tenths of the law" -- that every lay person thinks is a universal rule, but that anyone who bothers to do the research can identify as a more nuanced proposition than usually stated. That Larry Flynt movie has had an inordinate and unfortunate impact on the American public, I'm afraid.
With that said, Mastercard probably could not bring a successful cause of action against RHF. Not because parody and satire are always protected, but because the statements in this case could not rise to the level of an actual offense, e.g. business libel, deceptive practices, or other state statutory or other common law claims. The point is, don't think that you can insult, disparage, or mislead with impunity because you have labeled a statement "satire." Seriously.
The other point is this: Mastercard is not sending the letters because it wants to sue RHF, or because it is serious about making RHF cease and desist. For a large company like Mastercard, it is a worthwhile investment to have a staff of cubicled drones, supervised by a third-rate attorney, who is in turn supervised by far better atttorneys up the line, to mail merge and send threatening letters to people who refer to their trademarks, trade dresses, or other intellectual property in manners which they would not prefer.
The threat itself isn't supposed to be effectual, but the act of making a show to protect their IP is significant. It shows their competitors or actual, putative infringers that they are watching what's going on, and that they will take action if people get out of line. That way, when a competitor tries to appropriate their IP in a manner that they do not wish, they can prove to the judge or jury just how valuable their investment is, and how much they have spent in time and effort to protect it.
Write a newspaper letter using the term Kleenex as a generic name for tissue. If your letter garners enough attention, you will receive a letter from the Legal Department of the company that manufactures Kleenex for just that reason. They want to make sure that you understand the difference between Kleenex (proper noun) and the concept of tissue paper generally. They do not want you to dilute their mark in a manner that hastens its descent into public domain. But more importantly, they want to be able to prove that they care about how their IP is being used when a real threat to their IP surfaces.
Is that really a reasonable expectation? Off-line, brick and mortar stores have gathered marketing data for decades.
You probably at least will concede that, if forced to think about it, you were always aware that the company to whom you provide your credit card revisits your information when it closes accounting books, reconciles its accounts with a credit card company, or reviews its sales data for trends and such.
Your post is factually incorrect in several respects.
The current copyright period is for life of the author (or long-lived joint author), plus 70 years. For works made for hire, the duration is 95 years from publication, or 120 years from creation, whichever expires first.
So, you are correct that copyright tends to last a lifetime, but that's a natural limit that is well within the constitution. American and old English copyright laws have typically extended for the duration of the author's life, plus some period of time thereafter. That way, the author could reap the benefits of having created something useful, and also pass along the fruits of his creation his or her heirs for a brief period thereafter.
Also, you are incorrect when you state that intellectual property "created" by a corporation holds its copyright forever. As I mentioned at the outset of this post, the maximum time for which a published work maintains copyright protection is 120 years, the "life" of the creator notwithstanding.
Accordingly, if you are waiting for Atari games to go into the public domain so that you lawfully can replicate and play Tank to your heart's content, you probably have about 80 years left.
The U.S. Court of Appeals for the District of Columbia (known as the "D.C. Circuit" and the "Second Highest Court in the Land") recently decided that the most recent extension of the period of protected copyright (from 100 to 120 years) did not violate Article 8, s. 8, cl. 8 of the U.S. Constitution. In so doing, the court rebuffed arguments by Harvard law professor and self-styled cyber-doofus -- and member of Der Sprockets dance troupe -- Larry Lessig.
Free market people should like this idea? It's imposing a tax on innovation. Why would anyone support such a plan, other than for the possibility of reaping where he or she has not sown.
All the economics you ever need to know is that when you tax something, all other things being equal, people will produce less of the taxed good.
Under the plan that was at the subject of this thread, investment in creating durable, lasting goods will dry up, because people would not be able to protect the fruits of their labor. Why would you create a classic novel -- one that will be read for ages -- when you will be forced to pay an increasingly severe tax in order to maintain the rights to its use? Instead, it would be much preferable to create a kitschy, faddish comic book.
In other words, the creation of Garbage Pail Kids would be a more economically rational endeavor than the composition of the greatest and most memorable story of music known to mankind.
It is almost as if you are molding stereotypes to fit your argument.
The thing that keeps (some) journalists from asking different questions or reporting different view-points is not obeisance to corporate over-lords. It's a herd mentality. Have you ever been to the National Press Building in Washington? It's like Melrose Place, but with Washington reporters for major newspapers competing for each other's affection and admiration instead of more attractive people. Those who deviate from the prevailing journalistic norms or political ideology or social beliefs are ostrascized. They are not invited to Happy Hour at Chi-Chi's on Friday. The result is a milquetoast, left-center media that cares about and reports on what other members of the milquetoast, left-center media care about. At least as far as the national, mainstream (read: print and broadcast) media is concerned.
Your theory that the media only protects profits just doesn't jibe with what is printed or broadcast. Why no coverups of Firestone, which was a bit of hysteria when one considers the actual number of accidents involved? Why would the people you consider to be corporate slaves blow up GM trucks on Dateline NBC to make the cars look unsafe?
You're wrong on other facts, as well.
Bill Buckley, Richard Brookhiser, and other conservative talking heads are calling for drug legalization. As are Democrat politicans such as Curtis Schmoke, Paul Wellstone, and others. You are just dead wrong when you say that comedians are the only ones criticizing what you see as a hypocritical drug policy.
The Inauguration did not occasion the largest protests in Washington since the "Vietnam era." Every year, on the anniversary of Roe v. Wade, abortion rights and anti-abortion protestors dwarf the cadre of protestors that turned out for Bush in January. The protests accompanying the Supreme Court's oral arguments in Casey v. Planned Parenthood were the largest protests in the last ten years, with more than ten times the size of that accompanying the inauguration. That's not even addressing the IMF/World Bank protests a few months prior.
Finally, as a person who has close ties with my local academia, I can write with confidence that the academy is not the place to visit to assure oneself that certain endeavors are not undertaken by idiots. The place is chock full of 'em, you know.
Jon Stewart is speaking truth to power? Let's be serious. The Daily Show is a second-rate, 30 minute "Tonight Show." Stewart stole schtick from Craig Kilborne, who stole it from Not Necessarily the News, who stole it from Dennis Miller, who stole it from some nondescript comedian whom I am too young to know.
On the Daily Show, the prevailing ideology is cynicism, mixed with blow-job jokes about Bill Clinton, dumb jokes about George Bush, and pee-pee jokes by Jon Stewart about Jon Stewart. It is not revealing anything earth-shattering or even mildly critical about co-called corporate overlords. In fact, it is dead-smack in the middle of the conventional mainstream, right next to Rather and Brokaw, only a little less serious about itself. There's a reason that Stewart is being asked to host award shows on networks and that his monologues appear on the Today Show some mornings; it is not because he is a rebel prophet.
Stewart is a jester, but he's not telling the truth. He's repeating the same garbage that you can get on the networks, but he's doing it with a smirk. That's not insight.
Slashdot Mirror
There are several ways that the court could resolve this in Skylarov's favor, but still retain the possibility of future prosecutions.
Nothing ever really goes to court proper. Most courts will attempt to bounce cases like this on grounds with the least precedential value if at all possible. It decreases the chances of a dramatic reversal.
Don't bother patting The Washington Post on the back just yet. They are notoriously uninformed, and their editorials appear to regurgitate conventional wisdom rather than taking a leadership role. In other words, as soon as somebody at a D.C. cocktail party figures out that he or she may benefit somehow, someway, under the DMCA, the Post will turn tail, without explanation or apology.
"In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs."
18 U.S.C. 3161(c)(1). Barring waiver or special circumstances, the seventy-day clock does not begin to run until Mr. Sklyarov's arraignment.
Not quite. Among the losers in the domain dispute sweepstakes were registrants such as www.bodacious-tatas.com, losing to a Sri Lankan company owned by the Tata family. Does that make sense?
If the private sector is performing a service amicably -- e.g., providing free e-mail accounts to anyone with web access -- why would a locality waste even a tiny bit of resources to accomplish the same?
The odd legal twist on this -- that reason that I am even posting on this thread -- is that the Houston e-mail account doubtlessly will be more constrained than AOL or its ilk in what it can and cannot do to subscribers.
For example, let's say that some enterprising young tech at Houston's e-mail server decides to start reading e-mail at random, with the intention of invading privacy. That could satisfy the state action requirement necessary to make out a constitutional claim, with attorneys fees available for even a suit that garners only nominal damages.
For a more dramatic example, let's say that the e-mail system is administered in a way that creates a disparate impact on racial minorities. Let's say that some nut commandeers a server and spams hatemail across the ether. The state could be liable where a private actor would not be. (The constitutional generally only prevents state action that impinges on a citizen's rights, not the same conduct undertaken by a private actor.)
That's without even touching on the potential liability under Title VI and other federal statutes if the e-mail program employs federal funds.
Why would any municipality want to do this?
If President Bush can get anyone to rework the '96 Act, it will be a sign of divine intervention, rather than a successful demonstration of his leadership prowess.
In the last century, there have been two major federal overhauls of federal communications policy -- the '34 and the '96 Acts. The '96 Act was the product of at least two dozen abortive attempts to enact the reforms, twenty years of FCC notice-and-comment rulemaking that set the predicates for the Act, and at least one federal judge in Washington running the nation's communications policy in the interim.
Do you think that George W. Bush could really "get the FCC and/or Congress" to fix the problems in the Act now? Do you think that someone with FDR's political acumen, Stephen Hawkings' intellectual might, and my dashingly handsome good looks could even accomplish that task?
In case the answer is no, I will note that there are several cases alleging that Hustler Magazine engaged in slander, defamation, libel, or other so-called dignity torts when it published material that the magazine asserted was satire or parody. See, e.g., Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188 (9th Cir. 1989).
As for your other comments about what you consider to be fraud and what you consider to have been bad investments on Mastercard's part, I share your disagreement with the system. However, the fact is that the marginal loss caused by people who cancelled their Mastercards pales in comparison to the potential value of loss that Mastercard will face if they lose the rights to their intellectual property.
Imagine that you and I, as the Axelboldt & Lawyamike Credit Card company, decide to start a marketing campaign that appropriates the "priceless" campaign in its near totality. Maybe we would use the tagline "invaluable" instead of "priceless." When Mastercard brings suit to show that they owned the rights to that line of advertising, and when it is time for the judge or jury to calculate damages, don't you think the efforts that they expended to protect their IP would be relevant?
Maybe a real life example would help:
If I were upset about your insinuating that I am a low-level corporate attorney, as you did in your post, I could send you an angry letter trying to make you retract your statement. (In the letter, I would include references to the fact that I am a judicial clerk for the most important judge in the country on tech issues right now.) My intent would be to change your behavior. That's what you appear to think Mastercard is doing. That's what you mock, right?
What Mastercard is actually doing has no such intent. They do not seek to change anyone's behavior, only to prove that they did not flinch from making efforts and spending money to protect what they consider to be valuable IP. In our analogy, it would be as if one of my high-powered attorney friends came up to me and said, Lawyamike, I read Twitter call you a low-level drone on Slashdot. I could reply that I sent you a nasty letter and talk smack about how you didn't get away with it, regardless of whether you laughed at my letter and immediately placed it in the circular file.
To summarize: Mastercard (and the rest of corporate America with the resources to do it) is sending nasty letters to prove that they sent the nasty letters, not to threaten or scare anybody. The fact that you or me or RHF's moderator laughs at the letter doesn't matter. The fact that they have a log of all of the letters, postage, and labor hours spent on protecting their IP, on the other hand, that could come in handy should they seek to protect their IP from a real infringer.
With that said, Mastercard probably could not bring a successful cause of action against RHF. Not because parody and satire are always protected, but because the statements in this case could not rise to the level of an actual offense, e.g. business libel, deceptive practices, or other state statutory or other common law claims. The point is, don't think that you can insult, disparage, or mislead with impunity because you have labeled a statement "satire." Seriously.
The other point is this: Mastercard is not sending the letters because it wants to sue RHF, or because it is serious about making RHF cease and desist. For a large company like Mastercard, it is a worthwhile investment to have a staff of cubicled drones, supervised by a third-rate attorney, who is in turn supervised by far better atttorneys up the line, to mail merge and send threatening letters to people who refer to their trademarks, trade dresses, or other intellectual property in manners which they would not prefer.
The threat itself isn't supposed to be effectual, but the act of making a show to protect their IP is significant. It shows their competitors or actual, putative infringers that they are watching what's going on, and that they will take action if people get out of line. That way, when a competitor tries to appropriate their IP in a manner that they do not wish, they can prove to the judge or jury just how valuable their investment is, and how much they have spent in time and effort to protect it.
Write a newspaper letter using the term Kleenex as a generic name for tissue. If your letter garners enough attention, you will receive a letter from the Legal Department of the company that manufactures Kleenex for just that reason. They want to make sure that you understand the difference between Kleenex (proper noun) and the concept of tissue paper generally. They do not want you to dilute their mark in a manner that hastens its descent into public domain. But more importantly, they want to be able to prove that they care about how their IP is being used when a real threat to their IP surfaces.
You probably at least will concede that, if forced to think about it, you were always aware that the company to whom you provide your credit card revisits your information when it closes accounting books, reconciles its accounts with a credit card company, or reviews its sales data for trends and such.
The current copyright period is for life of the author (or long-lived joint author), plus 70 years. For works made for hire, the duration is 95 years from publication, or 120 years from creation, whichever expires first.
So, you are correct that copyright tends to last a lifetime, but that's a natural limit that is well within the constitution. American and old English copyright laws have typically extended for the duration of the author's life, plus some period of time thereafter. That way, the author could reap the benefits of having created something useful, and also pass along the fruits of his creation his or her heirs for a brief period thereafter.
Also, you are incorrect when you state that intellectual property "created" by a corporation holds its copyright forever. As I mentioned at the outset of this post, the maximum time for which a published work maintains copyright protection is 120 years, the "life" of the creator notwithstanding.
Accordingly, if you are waiting for Atari games to go into the public domain so that you lawfully can replicate and play Tank to your heart's content, you probably have about 80 years left.
The U.S. Court of Appeals for the District of Columbia (known as the "D.C. Circuit" and the "Second Highest Court in the Land") recently decided that the most recent extension of the period of protected copyright (from 100 to 120 years) did not violate Article 8, s. 8, cl. 8 of the U.S. Constitution. In so doing, the court rebuffed arguments by Harvard law professor and self-styled cyber-doofus -- and member of Der Sprockets dance troupe -- Larry Lessig.
All the economics you ever need to know is that when you tax something, all other things being equal, people will produce less of the taxed good.
Under the plan that was at the subject of this thread, investment in creating durable, lasting goods will dry up, because people would not be able to protect the fruits of their labor. Why would you create a classic novel -- one that will be read for ages -- when you will be forced to pay an increasingly severe tax in order to maintain the rights to its use? Instead, it would be much preferable to create a kitschy, faddish comic book.
In other words, the creation of Garbage Pail Kids would be a more economically rational endeavor than the composition of the greatest and most memorable story of music known to mankind.
The thing that keeps (some) journalists from asking different questions or reporting different view-points is not obeisance to corporate over-lords. It's a herd mentality. Have you ever been to the National Press Building in Washington? It's like Melrose Place, but with Washington reporters for major newspapers competing for each other's affection and admiration instead of more attractive people. Those who deviate from the prevailing journalistic norms or political ideology or social beliefs are ostrascized. They are not invited to Happy Hour at Chi-Chi's on Friday. The result is a milquetoast, left-center media that cares about and reports on what other members of the milquetoast, left-center media care about. At least as far as the national, mainstream (read: print and broadcast) media is concerned.
Your theory that the media only protects profits just doesn't jibe with what is printed or broadcast. Why no coverups of Firestone, which was a bit of hysteria when one considers the actual number of accidents involved? Why would the people you consider to be corporate slaves blow up GM trucks on Dateline NBC to make the cars look unsafe?
You're wrong on other facts, as well.
Bill Buckley, Richard Brookhiser, and other conservative talking heads are calling for drug legalization. As are Democrat politicans such as Curtis Schmoke, Paul Wellstone, and others. You are just dead wrong when you say that comedians are the only ones criticizing what you see as a hypocritical drug policy.
The Inauguration did not occasion the largest protests in Washington since the "Vietnam era." Every year, on the anniversary of Roe v. Wade, abortion rights and anti-abortion protestors dwarf the cadre of protestors that turned out for Bush in January. The protests accompanying the Supreme Court's oral arguments in Casey v. Planned Parenthood were the largest protests in the last ten years, with more than ten times the size of that accompanying the inauguration. That's not even addressing the IMF/World Bank protests a few months prior.
Finally, as a person who has close ties with my local academia, I can write with confidence that the academy is not the place to visit to assure oneself that certain endeavors are not undertaken by idiots. The place is chock full of 'em, you know.
On the Daily Show, the prevailing ideology is cynicism, mixed with blow-job jokes about Bill Clinton, dumb jokes about George Bush, and pee-pee jokes by Jon Stewart about Jon Stewart. It is not revealing anything earth-shattering or even mildly critical about co-called corporate overlords. In fact, it is dead-smack in the middle of the conventional mainstream, right next to Rather and Brokaw, only a little less serious about itself. There's a reason that Stewart is being asked to host award shows on networks and that his monologues appear on the Today Show some mornings; it is not because he is a rebel prophet.
Stewart is a jester, but he's not telling the truth. He's repeating the same garbage that you can get on the networks, but he's doing it with a smirk. That's not insight.