I don't think this would hold up in court. [snip] If I come along and discover a public share, I can only assume that the person *meant* to share it.
I think you have confused what lawyers do, which is to make elaborately reasoned and internally consistent arguments for a particular point of view, with what the courts do, which is to decide which of these arguments should be taken seriously.
The law is pretty clear (I oversimplify a bit, but not in a way that affects the argument) about saying that you generally shouldn't mess with other people's property, especially when you know that they wouldn't want you to. So you and your lawyer can argue that "I can only assume..." and the other side's lawyer can argue that you actually assumed something else. But the court has to decide which of these two arguments wins. If it's a criminal case, it will decide by asking a jury of your peers (it may not be practical to empanel such a jury, but that's still the applicable principle).
OK. Think about a jury of individuals you would consider your peers. Think about trying that "I can only assume..." argument out on them. Do you really believe that a jury of your peers is ready to buy an argument that Joe Clueless meant to share his C: drive?
The original title of this thread said somthing about not passing the giggle test, and that seems to say it all.
The fact is, all these 'opening the door' and 'entering the yard' metaphors are just WRONG. The laws of the physical world do not apply to the digital world or the internet by default. If they did, every person visiting a web link would be 'entering' (but not 'breaking and entering' right?) as well as guilty of theivery for copying the content of the site to their local browser.
On the contrary.... The metaphor works just fine. Following a web link isn't breaking and entering because the follower of the link is invited. There are some questions about what constitutes an invitation, but that doesn't affect the validity of the principle. Most of the criminal law relating to theft, breaking and entering and other property crimes comes down to saying that you shouldn't do things to other people's property that they don't want you to do - and that principle works just as well in the digital world as the physical world. This shouldn't be surprising, since the digital world is built out of physical computers that do have owners.
How is storing files on my hard drive because I screwed up my firewall settings any different than camping out in my basement because the lock on the basement door won't hold in wet weather?
Well... to use a physical analogy... If you leave the door to your house wide open, then you can't charge a person with breaking and entering.
Oh yes you can.
Entering a house uninvited through an unlocked door is breaking and entering in the United States and most if not all countries that derive their law from any Western European tradition.
This isn't even such a bad way for the law to work. The practical effect is that it's just as illegal to break into an easy target as a hard target. And that's as it should be - if softness of the target could be a defense, it wouldn't be as serious of a crime to break into a house that had windows as one that didn't. Bear in mind that the lock on the door of most American suburban houses wouldn't keep out a moderately determined wolfcub with a bent hairpin. It's just there to remind the wolfcubs that they aren't supposed to be breaking in.
35 km is higher, by more than a factor of two, than commercial aircraft operate, and is outside the reach of military operations except under the most extraordinary conditions. And maybe there's a reason why they launched from Australia instead of, for example, somewhere underneath the approaches to New York City?
Seriously, the problem of keeping these things out of the way of aircraft should be solvable. It certainly isn't harder than stopping high school training ships from sneaking up on and surprising gigabuck nuclear attack submarines. Often, safety is a matter of ensuring that a repeatable process is in fact being repeated.
There are (at least) two interesting constitutional questions here.
First, there are commerce clause issues - what's Michigan doing regulating the interstate operations of the internet? I doubt that most/.ers would be really happy if Michigan were to be slapped down for this reason, as this would imply that the federal government might be allowed to impose this sort of restriction.
Second, there are first amendment issues. Historically, the Supreme Court has held that anonymous speech is protected, in the sense that a law prohibiting anonymous speech (actually pamphlets in one case) simply because it is anonymous, is unconstitutional. This could be strong support for Michigan ISPs who choose not to know the identity of their users; these would almost have to be free ISPs as they couldn't send out bills. (Or, as another poster has pointed out, one can imagine collecting fees through something like calling-card sales).
It won't be a whole lot of help to ISPs who do know the identity of their subscribers but don't want to release it. These, confronted with a search warrant based on suspicion of illegal activity, won't have much choice except to comply. It is this sense that the right to anonymity is not absolute.
I have a lot of sympathy with the argument that tools should be used in the right place, but I don't think this is the right place for that argument.
A use is "valid" because it's well-suited to the capabilities of the tool, but much of the charm of software in general and open-source software in particular is that these capabilities aren't fixed. They grow and develop over time.
I use software tools for writing letters to grandma and balancing my checkbook today. What's the point of saying that Linux shouldn't be one of those tools? Sure, it's not ideally suited for those purposes today, but I have to construe that as a defect and not a feature.
I'm trying to imagine why an association of German record manufacturers would want to block the CoS, and I'm coming up blank.....:-)
The article says that they're blocking illegal content (in this case pirated MP3s), as opposed to objectionable content. If there's a slippery slope here, it has to do with the general notion of making some actions illegal. That's a slippery slope that societies have been working with since the dawn of civilization.
So the answer to your question is: it stops at the line between legal and illegal, and that has nothing to do with the internet. It's an ongoing debate in any democratic society.
FWIW, the legal status of pirated MP3s is just as murky in Germany as it is here.
For example, filtering out porn is simple enough. That's why there's so many companies that do it. It is a simple matter to accurately filter out pornography
No.
It's really quite difficult to accurately filter porn. Many companies do it, but none that I am aware of do it well and accurately. Yes, Felix Frankfurter knew porn when he saw it, and so do I, and no doubt you do too (and we might even mostly agree about when we're seeing it). But that's because we're people, and people are very good at pattern recognition.
Computers don't do pattern recognition especially well, and there's not a porn filter in existence that doesn't have an intolerable error rate.
I once worked at a major system vendor. One day they installed a porn filter. Bingo - no access to the X/Open web site!
The first amendment gives you the right to speak out against the government, not a company
That's a lot closer to right than a lot of what's been said in this thread, but it's not quite right yet.
To be precise: The first amendent prohibits congress from passing laws that infringe on your freedom of speech. The first amendent isn't intended to grant you any rights; it serves to take rights away from the government.
Companies can legally read email that you get at work, but the government can not
Again, close but not spot on. This is a matter of property rights. Companies can legally read your email at work, not because they aren't the government, but because they own the network and servers so they can do anything they please with them. The government does have the right to read email to and by government employees using government-owned computers, for the same reason.
And that piece of paper your employer makes you sign, saying that you have no expectation of email privacy.... That's not granting your employer the right to read your email. It's just to make sure that you can't claim to be surprised when they do read your mail. They had the right to read it all along.
A satisfying thought, but neither stupidity nor error on the part of a law enforcement agent is generally criminal. To get a good conspiracy case going, you need to be able to show that they knew it was wrong and illegal and went ahead anyways, lied to get a warrant, or something of that sort.
Aren't there documented cases of Microsoft incorporating someone else's (Apple, Xerox) "trade secrets" into their products?
If such a thing could be "documented", then microsoft would be liable for damages for stealing trade secrets.
And if someone with access to microsoft trade secrets uses them in an OSS product, then they would be liable for stealing trade secrets too, if it could be "documented".
There's nothing really complicated here. Just because they are evil swine doesn't make it OK to steal from them.
It's microsoft's code, and they have as much right to release it under their EULA or not at all as RMS has to release his code under the GPL or not at all, or you have to release your code under any license that you please. You may choose to put your code in the public domain, but no one else should be able to compel you to do so.
There's a fairly basic principle that stolen property still belongs to the original owner. If A owns a car, and B steals it and then sells it to C, what's C's position? If C knew the car was stolen, then he's committed the crime of receiving stolen goods. If he didn't, then he paid B for a car that wasn't B's to sell, so he's out the money and angry at B - but he has no more claim to the car than if it had never been stolen.
There's not a lot of wiggle room in the "make no law..." part, but there's a huge amount of wiggle room in the part about the "freedom of the press" that follows.
These words cannot be interpreted just literally, or many things that aren't printing presses wouldn't be protected. The question that the legal system is trying to answer is "what resolution of this case is most consistent with the principles that Americans believe lie behind these words" and that question is oozing, pregnant, redolent of wiggle room.
But you are quite right that the Kaplan decision will be overturned. The American legal system derives general principles by successive approximation (as it must - at a small enough scale any bright line looks like a wide grey area), sometimes slowly and horribly wrong on individual cases, but it's always eventually gotten the right principle in place.
.... is that interviewees are being asked to sign NDAs.
Let's stop and remember where NDAs came from. In the past, they've been documents exchanged between companies before they would get together to discuss joint ventures, technology sharing, partnerships, mergers, and the like. It's pretty clear that such discussions can't even get started without an NDA, but the real point here is that these are discussions between equals.
So the interesting thing about the practice of requesting an NDA from an interviewee is that it suggests that hiring is a business relationship between equals, between a company offering money for a service and an interviewee, as a provider of that service, trying to evaluate whether he/she wants the company as a customer. The NDA isn't a sign of enslavement - it's a sign of the greater power and independence of skilled knowledge workers in this economy.
Recall that consultants, who are assumed to be independent service providers, have been signing NDAs routinely for years.
Read it, understand it, don't sign it if it's ridiculous,don't talk about what you hear in the interview outside the company - no problem.
However, calling a poster's relation to a post a copyright is going a bit far. Doing so brings into question the legality of quoting for a reply
Not so. There isn't even a legal gray area here.
Under current copyright law, essentially anything that you write is copyrighted. That you have copyright to your Usenet posts is about as certain as anything in the law.
However, copyright law explicitly allows copying for "fair use", and quoting for a reply is unquestionably a fair use - it's like quoting a passage froma book in a book review.
Slashdot Mirror
[snip]
If I come along and discover a public share, I can only assume that the person *meant* to share it.
I think you have confused what lawyers do, which is to make elaborately reasoned and internally consistent arguments for a particular point of view, with what the courts do, which is to decide which of these arguments should be taken seriously.
The law is pretty clear (I oversimplify a bit, but not in a way that affects the argument) about saying that you generally shouldn't mess with other people's property, especially when you know that they wouldn't want you to. So you and your lawyer can argue that "I can only assume..." and the other side's lawyer can argue that you actually assumed something else. But the court has to decide which of these two arguments wins. If it's a criminal case, it will decide by asking a jury of your peers (it may not be practical to empanel such a jury, but that's still the applicable principle).
OK. Think about a jury of individuals you would consider your peers. Think about trying that "I can only assume..." argument out on them. Do you really believe that a jury of your peers is ready to buy an argument that Joe Clueless meant to share his C: drive?
The original title of this thread said somthing about not passing the giggle test, and that seems to say it all.
On the contrary.... The metaphor works just fine. Following a web link isn't breaking and entering because the follower of the link is invited. There are some questions about what constitutes an invitation, but that doesn't affect the validity of the principle. Most of the criminal law relating to theft, breaking and entering and other property crimes comes down to saying that you shouldn't do things to other people's property that they don't want you to do - and that principle works just as well in the digital world as the physical world. This shouldn't be surprising, since the digital world is built out of physical computers that do have owners.
How is storing files on my hard drive because I screwed up my firewall settings any different than camping out in my basement because the lock on the basement door won't hold in wet weather?
If you leave the door to your house wide open, then you can't charge a person with breaking and entering.
Oh yes you can.
Entering a house uninvited through an unlocked door is breaking and entering in the United States and most if not all countries that derive their law from any Western European tradition.
This isn't even such a bad way for the law to work. The practical effect is that it's just as illegal to break into an easy target as a hard target. And that's as it should be - if softness of the target could be a defense, it wouldn't be as serious of a crime to break into a house that had windows as one that didn't. Bear in mind that the lock on the door of most American suburban houses wouldn't keep out a moderately determined wolfcub with a bent hairpin. It's just there to remind the wolfcubs that they aren't supposed to be breaking in.
Seriously, the problem of keeping these things out of the way of aircraft should be solvable. It certainly isn't harder than stopping high school training ships from sneaking up on and surprising gigabuck nuclear attack submarines. Often, safety is a matter of ensuring that a repeatable process is in fact being repeated.
First, there are commerce clause issues - what's Michigan doing regulating the interstate operations of the internet? I doubt that most /.ers would be really happy if Michigan were to be slapped down for this reason, as this would imply that the federal government might be allowed to impose this sort of restriction.
Second, there are first amendment issues. Historically, the Supreme Court has held that anonymous speech is protected, in the sense that a law prohibiting anonymous speech (actually pamphlets in one case) simply because it is anonymous, is unconstitutional. This could be strong support for Michigan ISPs who choose not to know the identity of their users; these would almost have to be free ISPs as they couldn't send out bills. (Or, as another poster has pointed out, one can imagine collecting fees through something like calling-card sales).
It won't be a whole lot of help to ISPs who do know the identity of their subscribers but don't want to release it. These, confronted with a search warrant based on suspicion of illegal activity, won't have much choice except to comply. It is this sense that the right to anonymity is not absolute.
A use is "valid" because it's well-suited to the capabilities of the tool, but much of the charm of software in general and open-source software in particular is that these capabilities aren't fixed. They grow and develop over time.
I use software tools for writing letters to grandma and balancing my checkbook today. What's the point of saying that Linux shouldn't be one of those tools? Sure, it's not ideally suited for those purposes today, but I have to construe that as a defect and not a feature.
The article says that they're blocking illegal content (in this case pirated MP3s), as opposed to objectionable content. If there's a slippery slope here, it has to do with the general notion of making some actions illegal. That's a slippery slope that societies have been working with since the dawn of civilization.
So the answer to your question is: it stops at the line between legal and illegal, and that has nothing to do with the internet. It's an ongoing debate in any democratic society.
FWIW, the legal status of pirated MP3s is just as murky in Germany as it is here.
No.
It's really quite difficult to accurately filter porn. Many companies do it, but none that I am aware of do it well and accurately. Yes, Felix Frankfurter knew porn when he saw it, and so do I, and no doubt you do too (and we might even mostly agree about when we're seeing it). But that's because we're people, and people are very good at pattern recognition.
Computers don't do pattern recognition especially well, and there's not a porn filter in existence that doesn't have an intolerable error rate.
I once worked at a major system vendor. One day they installed a porn filter. Bingo - no access to the X/Open web site!
That's a lot closer to right than a lot of what's been said in this thread, but it's not quite right yet.
To be precise: The first amendent prohibits congress from passing laws that infringe on your freedom of speech. The first amendent isn't intended to grant you any rights; it serves to take rights away from the government.
Companies can legally read email that you get at work, but the government can not
Again, close but not spot on. This is a matter of property rights. Companies can legally read your email at work, not because they aren't the government, but because they own the network and servers so they can do anything they please with them. The government does have the right to read email to and by government employees using government-owned computers, for the same reason.
And that piece of paper your employer makes you sign, saying that you have no expectation of email privacy.... That's not granting your employer the right to read your email. It's just to make sure that you can't claim to be surprised when they do read your mail. They had the right to read it all along.
A satisfying thought, but neither stupidity nor error on the part of a law enforcement agent is generally criminal. To get a good conspiracy case going, you need to be able to show that they knew it was wrong and illegal and went ahead anyways, lied to get a warrant, or something of that sort.
If such a thing could be "documented", then microsoft would be liable for damages for stealing trade secrets.
And if someone with access to microsoft trade secrets uses them in an OSS product, then they would be liable for stealing trade secrets too, if it could be "documented".
There's nothing really complicated here. Just because they are evil swine doesn't make it OK to steal from them.
It's microsoft's code, and they have as much right to release it under their EULA or not at all as RMS has to release his code under the GPL or not at all, or you have to release your code under any license that you please. You may choose to put your code in the public domain, but no one else should be able to compel you to do so.
There's a fairly basic principle that stolen property still belongs to the original owner. If A owns a car, and B steals it and then sells it to C, what's C's position? If C knew the car was stolen, then he's committed the crime of receiving stolen goods. If he didn't, then he paid B for a car that wasn't B's to sell, so he's out the money and angry at B - but he has no more claim to the car than if it had never been stolen.
These words cannot be interpreted just literally, or many things that aren't printing presses wouldn't be protected. The question that the legal system is trying to answer is "what resolution of this case is most consistent with the principles that Americans believe lie behind these words" and that question is oozing, pregnant, redolent of wiggle room.
But you are quite right that the Kaplan decision will be overturned. The American legal system derives general principles by successive approximation (as it must - at a small enough scale any bright line looks like a wide grey area), sometimes slowly and horribly wrong on individual cases, but it's always eventually gotten the right principle in place.
Let's stop and remember where NDAs came from. In the past, they've been documents exchanged between companies before they would get together to discuss joint ventures, technology sharing, partnerships, mergers, and the like. It's pretty clear that such discussions can't even get started without an NDA, but the real point here is that these are discussions between equals.
So the interesting thing about the practice of requesting an NDA from an interviewee is that it suggests that hiring is a business relationship between equals, between a company offering money for a service and an interviewee, as a provider of that service, trying to evaluate whether he/she wants the company as a customer. The NDA isn't a sign of enslavement - it's a sign of the greater power and independence of skilled knowledge workers in this economy.
Recall that consultants, who are assumed to be independent service providers, have been signing NDAs routinely for years.
Read it, understand it, don't sign it if it's ridiculous,don't talk about what you hear in the interview outside the company - no problem.
Not so. There isn't even a legal gray area here.
Under current copyright law, essentially anything that you write is copyrighted. That you have copyright to your Usenet posts is about as certain as anything in the law.
However, copyright law explicitly allows copying for "fair use", and quoting for a reply is unquestionably a fair use - it's like quoting a passage froma book in a book review.