Good point. But I'd say that piracy doesn't affect foreign software companies as much as it does American ones. Just look at what's being pirated -- mostly Microsoft and Adobe products, right? Then we can get into the thorny issue of what's really innovation, but for the government's purposes, it's the software that most people use and will continue to use. (How easier to measure innovation than by relying on the market? I'm not saying this is the best way measure innovation; just the easiest.)
If these companies quit innovating (and we can of course argue whether that's good), then the US's leadership is certainly "at stake."
Um, I think you're interpreting this wrong. American leadership is "at stake" because if companies lose all this money, why in the world should they bother producing more of it; why would they continue innovating? If companies don't innovate, then no more American leadership. This reasoning is based on traditional copyright doctrine -- that is, we have copyright law to encourage more innovation, and more innovation means economic leadership -- and obvjously copyright law is why the feds raided these places.
Whatever your thoughts about copyright's rationales, you got the interpretation dead wrong.
You're talking about prior restraint? Yes, it might be hindering the freedom of the press, but it's not unconstitutional when a private party does it by contract. Only a government can get in trouble for it (federal or state).
This has been litigated before (for example, it was an issue in Drudge v. Blumenthal (I think, it's been a while), wherein Sid Blumenthal--one of Clinton's advisors--sued Drudge for defamation. One of Drudge's defenses was freedom of the press, and Blumenthal claimed Drudge wasn't part of the press.)
Yes, it's an interesting question, but the short answer is that there's definitely a difference between freedom of speech and freedom of the press. The "press" in the First Amendment refers to bona fide members of the press. You can't just say you're a member of the press to get Constitutional press privileges. In any case, the Press right and its accompanying privileges are different than the broader freedom of speech.
Actually, the overuse scenario implies no rules in the use of the land. Completly untrue, there where in the past, just not written in a book and ajudicated by a magistrate. The rules where implicit in the society that shared the "common ground".
The tradegy comes from the usurpation of non-native land, ensuring the "get mine before everyone gets their's" attitude, otherwise known as "the land grab".
The overuse scenario in the tragedy of the commons certainly does imply rules in the use of the land. The rule is that everyone can use it as much or as little as they want. Your "tradegy" is not the classic scenario, and in any case the point of the tragedy of the commons had nothing to do with native/not-native (call it sovereignty) concepts. It had to do with sustainability (e.g., in overpopulation scenarios) and the need for regulation.
"Commons" is an interesting term to use, since it is a relatively archaic word.
The "commons" is the standard word to use in economics (and in law) when referring to public goods. It comes from a 1968 article called "Tragedy of the Commons", by Garrett Hardin, which described a common grazing green that everyone can and has a right to use. Because everyone wants to maximize their gain, the commons quickly gets overused such that everyone loses out; that's the tragedy. It's used as a reason why we have property rules in general, and especially public goods-type property, like intellectual property.
Second, and more relevantly, you're corrupting the entirely respectable notion that breach of contract lets a society be as economically efficient as possible. You forget -- well, probably, didn't know, despite your "knowledge" of Adam Smith -- that breach of contract is economically more efficient NOT when there's a higher bidder, but when there's a higher bidder *AND* when the premium the higher bidder offers is greater than or equal to the penalties the seller incurs from having to breach the contract. (Legally, this is the idea of the "efficient breach.") As MarkusQ points out, it's the penalties that are important, because making sure contracts are consistently enforceable is MUCH MORE IMPORTANT to society than recognizing the validity of the efficient breach.
However, say a cop told me to walk over to him, and by doing so I crossed a grassy median and after I cross it, he arrests me for walking on the grass, since thats illegal. I may not have known that, especially if there were no obvious signs around.
This might seem unfair to you, but with very few exceptions: not knowing what the law is is not an excuse. To flesh out the situation, though, this sort of offense probably wouldn't be a felony (keep in mind you have to separate being arrested from being charged with a crime; you can be arrested for a lot more reasons than you can be charged a crime with). If it's not a felony, then hell yeah, you can be charged with violating the law when you cross. The test is whether you would have done it regardless of the policeman's request. (If it is a felony, then you might get arrested, but you probably wouldn't be charged with the crime; the prosecution would need something more wrt your intentions.)
f the sysadmin knew that what he was doing was potentially against the law, he probably should have gotten the request in writing.
This wouldn't have helped him at all -- in fact, it would have hurt him more! If this were the case, the prosecution might have clearer evidence that he knew the act broke the law, and so he was trying to cover his butt. This, of course, doesn't make an excuse.
And more importantly, this is a victimless crime. Prosecuting this person accomplishes nothing, but it might make someone out there feel safer at night . ..
First of all, last time I checked, if a law enforcement official asks me to demonstrate something by breaking the law, then arrests me for it, technically thats entrapment.
It's not entrapment unless the law enforcement official puts so much pressure on you that you do something (that happens to be illegal) that you wouldn't have done in normal circumstances. Otherwise, fair game. Look at it this way: a cop says, "here's a gun. Go ahead, shoot the bum on the street. I won't do anything." He says nothing further, and you go ahead and shoot the bum. Of COURSE you've just committed a crime!
Yup -- the worker's comp statutes (which are state laws) are entirely different than the ADA (which is a federal law). Also, the purposes behind worker's comp laws -- compensation for injury on the job -- and ADA laws -- preventing discrimination against disabled people for the disability -- are entirely different. Thus, the outcomes aren't inconsistent.
A purpose of the Americans with Disabilities Act (which I do not necessarily agree with) is to let people who are disabled in life be employed.
Well, I suppose you'd be glad to hear that this is not a purpose of the ADA. The ADA explicitly sets out its purpose (at least with respect to employment) in its text: to prevent discrimination against disabled people. It has nothing to do with letting them be employed.
A related point: it seems that people are assuming a couple things that are not entirely clear in the caselaw on the ADA. First of all, work is not clearly a "major life activity" in the sense of the ADA. That is, one who is impaired in being able to work is NOT obviously disabled in the ADA's meaning. Some courts have said it's a disability, others disagree, and SCOTUS has expressed its own reservations about extended ADA protection to this sort of impairment.
Second, even if being impaired from working (let's use the case's example) is a disability, the ADA would only protect her if her impairment prevented her from working in a broad class of jobs, not just one. It's pretty obvious that she's only impaired from jobs that involve typing. Sure, I'd feel bad for those programmers that had spent years training for their jobs but then are unable to type. But as far as the ADA is concerned, this isn't protectable. Remember that the ADA protects against discrimination against disabled people.
Finally, worker's comp isn't the same as a discrimination suit under the ADA. Completely different.
IAAL too. The problem, I think, is not that/.'ers are not interested in a real lawyer's opinion (see, e.g., the uniformly respectful responses to the Daniel Ravicher interview), but that they don't believe that we are real lawyers. After all, being able to spout legalese -- no matter how simply you try to put it -- doth not maketh a lawyer in/.'ers' eyes.
But this violates my right to choose who I associate with.
Whoa, hold on. This right (that is, the right to peaceably assemble) doesn't extend to writings. For example, the KKK couldn't stop the Anti-Defamation League from using excerpts of KKK hate literature if their use fell under fair use, even if the KKK doesn't want to associate with the Anti-Defamation League.
What you're talking about, really, is the copyright owner's right to control the distribution of his/her work -- including the right NOT to distribute his/her work if he/she so pleases. This is an entirely different "right."
this really reinforces the argument that the largest pocket book (most expensive lawyers) will win in a court case. the little guy has no chance. napster lost to the unlimited checkbook of the RIAA, and the freelance writers ultimately lost to the New York Times.
Um, napster's litigation was run by David Boies, probably the highest profile litigator in the country, and Fenwick & West, a relatively big and hardhitting tech law firm. It's not like they were represented by some Joe Schmoe, Esq. For them to get Boies and Fenwick, they can't be that much of a "little guy." They had an extremely good chance against the RIAA with the likes of Boies and Fenwick.
As for the freelance writers, they WON against NYT. That's why NYT has to remove the freelance writers' work.
Actually, at least in the US, when the government funds or helps fund research, it retains an irrevocable license to practice -- for purposes of public health, national security, or some other important public issue -- whatever the research comes up with. The reason for this is obvious -- the government is supposed to represent the public, after all. But the policy implication is also entirely reasonable: the government can't do all the research, so it goes to private organizations -- both universities and companies -- to do it. But companies out to make a living in general won't do research unless it can get a competitive advantage from its R&D. By giving them the patents/etc., but retaining an irrevocable license, both the government/public and the company get the upside.
The reason why (big corporate) copyright holders are so into (and so afraid of) the Internet is precisely because *everything* in cyberspace is DISTINCTLY tangible. Everything's a bunch of bits, recorded somewhere. For purposes of copyright, this is tangible, which is why it's so easy to claim a copyright over digital content. [Now that I think about it, I can't think of one thing in cyberspace that's intangible. Even streaming live performances are converted into a digital stream, and if it's saved simultaneously (which it probably is) it's "fixed" for purposes of copyright.] Then what's intangible? E.g., like you mention, spoken, unrecorded words; styles of live performance.
Like Myrdon points out, it totally depends on what you want to do with it. In terms of real business knowledge -- that is, how to run a business, how to expand business, management in business, etc. -- you can't beat an MBA. The MA/MS in econ isn't that useful for this kind of stuff. I'd say that it's best for academia or policy-making.
I thought most, if not all, graduate business schools have some sort of hard quantitative analysis. (That's why a lot of them have statistics or hard math requirements for admissions.) Of course, each school will differ in the amount of quant focus, but you could look that up in, for example, the businessweek rankings.
Here in the US, expecting a JD means 1) he has a bachelor's degree, and 2) he probably will have studied in law school for 3 years. (Which means, of course, a total of 5 years in post-secondary school education, but NOT 5 years of studying law.) We used to call JDs LLBs, as a matter of fact. Anyway, the rought equivalent to a PhD in law is an SJD -- the doctor of juridical science. There is also the LLM, which is usually for foreign students who want a taste of American law, and sometimes for American JDs who intend to teach. (In any case, a professor need not have an SJD or an LLM to teach, which is why I say that the SJD is a rough equivalent to a PhD.) An aside: I would certainly analogize the JD to an MD, rather than a PhD. Both the JD and MD are generalized graduate degrees that (classwork-wise) take the same amount of time. The PhD is a very specific graduate degree, in that a PhD studies a very specific subject deeply.
The whole notion that "intellectual property" is a form of property at all is indeed quite modern and still controversial. Copyrights, patents, and trademarks are all creatures of statute, not common law.
As for intrusion issues, those have traditionally been viewed as criminal events or torts. The "trespass in chattel" theory is recent, and wierd when applied to publicly visible web sites. It's an attempt to create database copyright (a concept rejected by Congress) via a back door. We'll see more litigation in that area.
What you've said is great and all, but it doesn't answer my question. I suppose I should be clearer: so what if it's a right-wing (or left-wing, for that matter) viewpoint? And, in any case, there's no good argument to say that his statement is right-wing.
As for the points in your response, good ones, although I'd take issue with the notion that "trespass in chattel" theories are attempts to create database copyrights. While they certainly can be used to have that effect, I think it's more borne out of an intuitive feeling of "invasion" than anything else; that is, the parties that want to use such arguments already think they own whatever is being trespassed, and thus feel "intruded upon" when they don't give license to visitors. Think about it this way: your real property is most likely open, without fences, and so is "publicly available." This doesn't mean that you've given complete license to your next-door neighbor's kids to play on your yard, and it certainly doesn't mean that you need to build fences to keep them out.
2) I don't think you can justifiably call a focus on property rights "right-wing" (as opposed to a presumably left-wing focus on tort). I think the author assumes that all the legal decisions about the Internet will have something to do with intellectual property, and that thus they will continue to be based (at least partially) on property rights. This isn't right- or left-wing; it's just modern IP theory.
sorry, but the Reg A offering the article mentions isn't technically a private placement, it's a small offering. The Reg D offering you mention *is* a private placement, though, so you're right about that -- except that there are several ways to do a private placement, and the one you're talking about doesn't require investors to be accredited, or even sophisticated. The $1 million max offering is a Rule 504 offering. The other two Reg D offerings -- Rule 505 (limited at $5 million) and 506 (unlimited) -- don't require accredited investors. The reason that 501 has that definition is that the two offerings have limitations on the number of purchasers, and accredited investors -- among other classes of individuals -- are not counted as purchasers for the purposes of the limitations. In other words, investors in Reg D private placements don't have to be accredited.
Actually, she's right, if she's only limiting herself to crimes ("What makes crimes" etc. etc. is what she said). Every crime (and when I say crime, I mean a *crime*, not a violation (e.g., a traffic violation)) requires intent of some kind. Very quickly: a crime is a combination of an act ("actus reus") and a mental state ("mens rea"). You need both to convict someone of a crime. There are no strict liability crimes (aside from low-punishment, low-threshold violations).
Of course, you're definitely right when you point out that the law will not always consider intent. But a contract breach is not a "crime," and one can't say that a company, e.g., "committed a crime" when it's found strictly liable for something. Remember that in these types of cases -- civil cases -- a defendant is found "liable," not "guilty."
The copyright laws state very clearly that Fair Use is not an infringement of copyright.
Yes, this is what part of the text of sec. 107 says, but the beginning of the section says "Notwithstanding the provisions of sections 106 and 106A". This means that "despite the exclusive rights in 106 and 106A," there are certain fair use limitations on those exclusive rights. In other words, look at the title of the section: "Limitations on exclusive rights." This is emphatically not the same as "Rights of other people." You start with exclusive rights in sec. 106 and 106A, and then use fair use as a DEFENSE to a suit.
I can see how you'd think that "... is not an infringement of copyright" means "I have a fair use right, because I am not infringing in the first place," but that isn't the way it works. The process is allege infringement --> ask, is there infringement? --> ask, what is infringement? --> see 107, fair use is not infringement --> find for defendant.
It may seem like splitting hairs, but there really is a big difference between a right and defense. If you had a fair use right, you could sue someone for preventing your fair use. You can't do this. Also, if you had a fair use right, the burden would probably be on the copyright owner to prove that you didn't have this right. This is not what happens. What really happens is that someone sues you for infringement, and you have the burden of showing that your use was fair use.
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Good point. But I'd say that piracy doesn't affect foreign software companies as much as it does American ones. Just look at what's being pirated -- mostly Microsoft and Adobe products, right? Then we can get into the thorny issue of what's really innovation, but for the government's purposes, it's the software that most people use and will continue to use. (How easier to measure innovation than by relying on the market? I'm not saying this is the best way measure innovation; just the easiest.)
If these companies quit innovating (and we can of course argue whether that's good), then the US's leadership is certainly "at stake."
Um, I think you're interpreting this wrong. American leadership is "at stake" because if companies lose all this money, why in the world should they bother producing more of it; why would they continue innovating? If companies don't innovate, then no more American leadership. This reasoning is based on traditional copyright doctrine -- that is, we have copyright law to encourage more innovation, and more innovation means economic leadership -- and obvjously copyright law is why the feds raided these places.
Whatever your thoughts about copyright's rationales, you got the interpretation dead wrong.
You're talking about prior restraint? Yes, it might be hindering the freedom of the press, but it's not unconstitutional when a private party does it by contract. Only a government can get in trouble for it (federal or state).
This has been litigated before (for example, it was an issue in Drudge v. Blumenthal (I think, it's been a while), wherein Sid Blumenthal--one of Clinton's advisors--sued Drudge for defamation. One of Drudge's defenses was freedom of the press, and Blumenthal claimed Drudge wasn't part of the press.)
Yes, it's an interesting question, but the short answer is that there's definitely a difference between freedom of speech and freedom of the press. The "press" in the First Amendment refers to bona fide members of the press. You can't just say you're a member of the press to get Constitutional press privileges. In any case, the Press right and its accompanying privileges are different than the broader freedom of speech.
Actually, the overuse scenario implies no rules in the use of the land. Completly untrue, there where in the past, just not written in a book and ajudicated by a magistrate. The rules where implicit in the society that shared the "common ground".
The tradegy comes from the usurpation of non-native land, ensuring the "get mine before everyone gets their's" attitude, otherwise known as "the land grab".
The overuse scenario in the tragedy of the commons certainly does imply rules in the use of the land. The rule is that everyone can use it as much or as little as they want. Your "tradegy" is not the classic scenario, and in any case the point of the tragedy of the commons had nothing to do with native/not-native (call it sovereignty) concepts. It had to do with sustainability (e.g., in overpopulation scenarios) and the need for regulation.
"Commons" is an interesting term to use, since it is a relatively archaic word.
The "commons" is the standard word to use in economics (and in law) when referring to public goods. It comes from a 1968 article called "Tragedy of the Commons", by Garrett Hardin, which described a common grazing green that everyone can and has a right to use. Because everyone wants to maximize their gain, the commons quickly gets overused such that everyone loses out; that's the tragedy. It's used as a reason why we have property rules in general, and especially public goods-type property, like intellectual property.
Sorry to butt in, but I had to comment.
First of all, who cares what Adam Smith said?
Second, and more relevantly, you're corrupting the entirely respectable notion that breach of contract lets a society be as economically efficient as possible. You forget -- well, probably, didn't know, despite your "knowledge" of Adam Smith -- that breach of contract is economically more efficient NOT when there's a higher bidder, but when there's a higher bidder *AND* when the premium the higher bidder offers is greater than or equal to the penalties the seller incurs from having to breach the contract. (Legally, this is the idea of the "efficient breach.") As MarkusQ points out, it's the penalties that are important, because making sure contracts are consistently enforceable is MUCH MORE IMPORTANT to society than recognizing the validity of the efficient breach.
However, say a cop told me to walk over to him, and by doing so I crossed a grassy median and after I cross it, he arrests me for walking on the grass, since thats illegal. I may not have known that, especially if there were no obvious signs around.
.
This might seem unfair to you, but with very few exceptions: not knowing what the law is is not an excuse. To flesh out the situation, though, this sort of offense probably wouldn't be a felony (keep in mind you have to separate being arrested from being charged with a crime; you can be arrested for a lot more reasons than you can be charged a crime with). If it's not a felony, then hell yeah, you can be charged with violating the law when you cross. The test is whether you would have done it regardless of the policeman's request. (If it is a felony, then you might get arrested, but you probably wouldn't be charged with the crime; the prosecution would need something more wrt your intentions.)
f the sysadmin knew that what he was doing was potentially against the law, he probably should have gotten the request in writing.
This wouldn't have helped him at all -- in fact, it would have hurt him more! If this were the case, the prosecution might have clearer evidence that he knew the act broke the law, and so he was trying to cover his butt. This, of course, doesn't make an excuse.
And more importantly, this is a victimless crime. Prosecuting this person accomplishes nothing, but it might make someone out there feel safer at night . .
Definitely, you're right.
I don't know why I bother, but...
First of all, last time I checked, if a law enforcement official asks me to demonstrate something by breaking the law, then arrests me for it, technically thats entrapment.
It's not entrapment unless the law enforcement official puts so much pressure on you that you do something (that happens to be illegal) that you wouldn't have done in normal circumstances. Otherwise, fair game. Look at it this way: a cop says, "here's a gun. Go ahead, shoot the bum on the street. I won't do anything." He says nothing further, and you go ahead and shoot the bum. Of COURSE you've just committed a crime!
I'm probably missing something here.
Yup -- the worker's comp statutes (which are state laws) are entirely different than the ADA (which is a federal law). Also, the purposes behind worker's comp laws -- compensation for injury on the job -- and ADA laws -- preventing discrimination against disabled people for the disability -- are entirely different. Thus, the outcomes aren't inconsistent.
A purpose of the Americans with Disabilities Act (which I do not necessarily agree with) is to let people who are disabled in life be employed.
Well, I suppose you'd be glad to hear that this is not a purpose of the ADA. The ADA explicitly sets out its purpose (at least with respect to employment) in its text: to prevent discrimination against disabled people. It has nothing to do with letting them be employed.
A related point: it seems that people are assuming a couple things that are not entirely clear in the caselaw on the ADA. First of all, work is not clearly a "major life activity" in the sense of the ADA. That is, one who is impaired in being able to work is NOT obviously disabled in the ADA's meaning. Some courts have said it's a disability, others disagree, and SCOTUS has expressed its own reservations about extended ADA protection to this sort of impairment.
Second, even if being impaired from working (let's use the case's example) is a disability, the ADA would only protect her if her impairment prevented her from working in a broad class of jobs, not just one. It's pretty obvious that she's only impaired from jobs that involve typing. Sure, I'd feel bad for those programmers that had spent years training for their jobs but then are unable to type. But as far as the ADA is concerned, this isn't protectable. Remember that the ADA protects against discrimination against disabled people.
Finally, worker's comp isn't the same as a discrimination suit under the ADA. Completely different.
IAAL too. The problem, I think, is not that /.'ers are not interested in a real lawyer's opinion (see, e.g., the uniformly respectful responses to the Daniel Ravicher interview), but that they don't believe that we are real lawyers. After all, being able to spout legalese -- no matter how simply you try to put it -- doth not maketh a lawyer in /.'ers' eyes.
But this violates my right to choose who I associate with.
Whoa, hold on. This right (that is, the right to peaceably assemble) doesn't extend to writings. For example, the KKK couldn't stop the Anti-Defamation League from using excerpts of KKK hate literature if their use fell under fair use, even if the KKK doesn't want to associate with the Anti-Defamation League.
What you're talking about, really, is the copyright owner's right to control the distribution of his/her work -- including the right NOT to distribute his/her work if he/she so pleases. This is an entirely different "right."
this really reinforces the argument that the largest pocket book (most expensive lawyers) will win in a court case. the little guy has no chance. napster lost to the unlimited checkbook of the RIAA, and the freelance writers ultimately lost to the New York Times.
Um, napster's litigation was run by David Boies, probably the highest profile litigator in the country, and Fenwick & West, a relatively big and hardhitting tech law firm. It's not like they were represented by some Joe Schmoe, Esq. For them to get Boies and Fenwick, they can't be that much of a "little guy." They had an extremely good chance against the RIAA with the likes of Boies and Fenwick.
As for the freelance writers, they WON against NYT. That's why NYT has to remove the freelance writers' work.
Hm, makes me think of IANAL posters... :)
Actually, at least in the US, when the government funds or helps fund research, it retains an irrevocable license to practice -- for purposes of public health, national security, or some other important public issue -- whatever the research comes up with. The reason for this is obvious -- the government is supposed to represent the public, after all. But the policy implication is also entirely reasonable: the government can't do all the research, so it goes to private organizations -- both universities and companies -- to do it. But companies out to make a living in general won't do research unless it can get a competitive advantage from its R&D. By giving them the patents/etc., but retaining an irrevocable license, both the government/public and the company get the upside.
The reason why (big corporate) copyright holders are so into (and so afraid of) the Internet is precisely because *everything* in cyberspace is DISTINCTLY tangible. Everything's a bunch of bits, recorded somewhere. For purposes of copyright, this is tangible, which is why it's so easy to claim a copyright over digital content. [Now that I think about it, I can't think of one thing in cyberspace that's intangible. Even streaming live performances are converted into a digital stream, and if it's saved simultaneously (which it probably is) it's "fixed" for purposes of copyright.] Then what's intangible? E.g., like you mention, spoken, unrecorded words; styles of live performance.
Like Myrdon points out, it totally depends on what you want to do with it. In terms of real business knowledge -- that is, how to run a business, how to expand business, management in business, etc. -- you can't beat an MBA. The MA/MS in econ isn't that useful for this kind of stuff. I'd say that it's best for academia or policy-making.
I thought most, if not all, graduate business schools have some sort of hard quantitative analysis. (That's why a lot of them have statistics or hard math requirements for admissions.) Of course, each school will differ in the amount of quant focus, but you could look that up in, for example, the businessweek rankings.
Here in the US, expecting a JD means 1) he has a bachelor's degree, and 2) he probably will have studied in law school for 3 years. (Which means, of course, a total of 5 years in post-secondary school education, but NOT 5 years of studying law.) We used to call JDs LLBs, as a matter of fact. Anyway, the rought equivalent to a PhD in law is an SJD -- the doctor of juridical science. There is also the LLM, which is usually for foreign students who want a taste of American law, and sometimes for American JDs who intend to teach. (In any case, a professor need not have an SJD or an LLM to teach, which is why I say that the SJD is a rough equivalent to a PhD.) An aside: I would certainly analogize the JD to an MD, rather than a PhD. Both the JD and MD are generalized graduate degrees that (classwork-wise) take the same amount of time. The PhD is a very specific graduate degree, in that a PhD studies a very specific subject deeply.
The whole notion that "intellectual property" is a form of property at all is indeed quite modern and still controversial. Copyrights, patents, and trademarks are all creatures of statute, not common law.
As for intrusion issues, those have traditionally been viewed as criminal events or torts. The "trespass in chattel" theory is recent, and wierd when applied to publicly visible web sites. It's an attempt to create database copyright (a concept rejected by Congress) via a back door. We'll see more litigation in that area.
What you've said is great and all, but it doesn't answer my question. I suppose I should be clearer: so what if it's a right-wing (or left-wing, for that matter) viewpoint? And, in any case, there's no good argument to say that his statement is right-wing.
As for the points in your response, good ones, although I'd take issue with the notion that "trespass in chattel" theories are attempts to create database copyrights. While they certainly can be used to have that effect, I think it's more borne out of an intuitive feeling of "invasion" than anything else; that is, the parties that want to use such arguments already think they own whatever is being trespassed, and thus feel "intruded upon" when they don't give license to visitors. Think about it this way: your real property is most likely open, without fences, and so is "publicly available." This doesn't mean that you've given complete license to your next-door neighbor's kids to play on your yard, and it certainly doesn't mean that you need to build fences to keep them out.
1) So what?
2) I don't think you can justifiably call a focus on property rights "right-wing" (as opposed to a presumably left-wing focus on tort). I think the author assumes that all the legal decisions about the Internet will have something to do with intellectual property, and that thus they will continue to be based (at least partially) on property rights. This isn't right- or left-wing; it's just modern IP theory.
sorry, but the Reg A offering the article mentions isn't technically a private placement, it's a small offering. The Reg D offering you mention *is* a private placement, though, so you're right about that -- except that there are several ways to do a private placement, and the one you're talking about doesn't require investors to be accredited, or even sophisticated. The $1 million max offering is a Rule 504 offering. The other two Reg D offerings -- Rule 505 (limited at $5 million) and 506 (unlimited) -- don't require accredited investors. The reason that 501 has that definition is that the two offerings have limitations on the number of purchasers, and accredited investors -- among other classes of individuals -- are not counted as purchasers for the purposes of the limitations. In other words, investors in Reg D private placements don't have to be accredited.
Actually, she's right, if she's only limiting herself to crimes ("What makes crimes" etc. etc. is what she said). Every crime (and when I say crime, I mean a *crime*, not a violation (e.g., a traffic violation)) requires intent of some kind. Very quickly: a crime is a combination of an act ("actus reus") and a mental state ("mens rea"). You need both to convict someone of a crime. There are no strict liability crimes (aside from low-punishment, low-threshold violations).
Of course, you're definitely right when you point out that the law will not always consider intent. But a contract breach is not a "crime," and one can't say that a company, e.g., "committed a crime" when it's found strictly liable for something. Remember that in these types of cases -- civil cases -- a defendant is found "liable," not "guilty."
The copyright laws state very clearly that Fair Use is not an infringement of copyright.
Yes, this is what part of the text of sec. 107 says, but the beginning of the section says "Notwithstanding the provisions of sections 106 and 106A". This means that "despite the exclusive rights in 106 and 106A," there are certain fair use limitations on those exclusive rights. In other words, look at the title of the section: "Limitations on exclusive rights." This is emphatically not the same as "Rights of other people." You start with exclusive rights in sec. 106 and 106A, and then use fair use as a DEFENSE to a suit.
I can see how you'd think that "... is not an infringement of copyright" means "I have a fair use right, because I am not infringing in the first place," but that isn't the way it works. The process is allege infringement --> ask, is there infringement? --> ask, what is infringement? --> see 107, fair use is not infringement --> find for defendant.
It may seem like splitting hairs, but there really is a big difference between a right and defense. If you had a fair use right, you could sue someone for preventing your fair use. You can't do this. Also, if you had a fair use right, the burden would probably be on the copyright owner to prove that you didn't have this right. This is not what happens. What really happens is that someone sues you for infringement, and you have the burden of showing that your use was fair use.