Usually, for that sort of meaning, one would say either "the social impact of the credit card SHOULD NOT be underestimated" OR "the social impact of the credit card CANNOT be overestimated."
You've lost the game in that case. The Good and the Right are everything when deciding how laws should or should not be made. People in positions of authority and power are *required* to make such decisions many times a day. By *not* being willing to decide such things you have already let someone else make the decision.
When it comes to intellectual, expressive creations, THERE IS NO GOOD AND RIGHT. Over my dead body will people in positions of authority and power decide what's good and right music, what's good and right literature, what's good and right stuff to invent. This is why IP law is set on incentivizing the creation of more work, and that's it. I want the lawmakers to only only think about the amount of extra creation, not the quality of the extra creation, and I want them to balance that against things like fair use, public domain, free speech and consumer prices. That's it. I will decide if I like the extra work that has been created. I may like it, I may not, but at least it's out there and I had the chance to try and decide.
We don't *need* a certain kind of music. We need music PERIOD. As long as there's some kind of music, the need is satisfied. When you're sick you need a certian type of treatment, but that's not the case for music. That's why it ought not to be protected by copyright at all.
We already have music. We would have music without IP law. My point is that it's always better to have MORE music. If there is a certain amount of additional music that may be produced because of IP protection, then that's great. I definitely don't follow the logic that "that's why it ought not to be protected by copyright at all."
Music is much healthier when the creators are closer to the consumers, when the consumers are participants, as in a live performance. Music is healthier when it can be freely shared, as is the case in folk traditions. Shrink wrapped music takes musicians away from audiences, even though it may create audiences for musicians.
I'm supposed to simply accept as fact that music is much healthier when all that you say happens?? Sorry. My definition of music may not even coincide with yours. My definition of health may be completely different. Your assertion seems very snotty to me.
There now exists many times more music than any person could listen to in a lifetime. To say that that is enough of a good thing is not to say that there are not good things created in every generation. But why do we keep adding fertilizer to our garden when it is already overgrown? The "More is always better" philosophy is a North American bias or pathology. More is *not* always better. Sometimes more is worse because it depletes or dilutes the Good.
This is just silly. What is the Good? Who decides what is the Good? What if the "more" music is Good too?
Society shouldn't encourage "Good" or "Bad" music (or any other IP) creation -- just like it shouldn't encourage "Good" or "Bad" speech.
The more important question is this: Will you get the results you need? . . . What you really want is a way to encourage the right kind of output, the needed output, not just blindly throw favours at some particular sector of the economy.
This is a perfectly valid question, but it's not one that has an easy answer. Your example of a cure for cancer is fine, but the question of "need" is much subtler. Who is to say what is "needed"? For drugs, it's somewhat easier -- of course we'd rather have a cure for cancer than a drug that combats cancer symptoms. But what about, say, music? What kind of music do we "need"? One might analogize and argue that the current IP system encourages "crap" like Britney Spears and the Backstreet Boys, and depresses the distribution of "good" music produced on indie labels. This, it would seem, is bad -- I hear echoes of this argument a lot on/. But who's to say that Britney is "bad" and some indie band is "good"? It's certainly not the job of lawmakers to fashion laws that would reduce the production of Britneys and increase the production of indie bands. Their job is to increase the production of music. You may lament that there's too much Britney, but frankly, indie bands are still making music, are they not?
The same goes for "useless" patents; say, patents for stuff you'd buy late at night on an infomercial. The point is to encourage ANY production (up to where the marginal benefit == marginal cost)-- the presumption is that ANY additional production (up to MB==MC) is good for society, notwithstanding people's tastes or better judgment. It's a good presumption, too -- I'm not willing pass judgment on what is "needed" and what's not, and I'm not willing to let anyone else decide it.
Of course, with the creative output of academia now hobbled by "market relevance" and special interest lobbies, no engine of intellectual freedom is left.
Do you really believe this? First, if you look at the work of any scholars in any discipline at all the universities of this world, I'd be willing to bet that the vast majority of the work is completely market irrelevant. Second, I don't think there was ever a time when universities produced work while not beholden to anyone. Patrons -- especially royalty, but more recently, simply rich people -- have always given money to academia for their special interests. Hundreds of years ago, this is the only thing that happened; universities didn't always have the enormous endowments they have now. Even if private interests weren't involved, the government was, not only the royalty I mentioned above, but like in the past 100 years, all kinds of government -- capitalist/democratic, socialist, communist. Today isn't much different than any time in our past, except now the universities themselves can sell the work.
This wasn't a judgment, this was a settlement. You can't lump them together.
A settlement is an agreement between the plaintiff and the defendant to a dollar amount that makes everyone "happy" enough to drop litigating the case. Here, Microsoft is essentially saying, fine, it's worth $202 million to us to be able to drop this case and the risk that we'd be adjudged against. The plaintiffs are essentially saying, $202 million takes care of enough of our "suffering" to make us drop this case AND the risk that we'd be adjudged against.
One way to look at it is an expected value analysis. Say MSFT puts a 50%-75% probability on losing the case, and that if they did lose, they would suffer a judgment of $300 million. The class puts a 25%-50% chance on winning the case, but a judgment of $400 million if they did win. MSFT's expected value of their loss is between $150 million and $225 million (probability * judgment amount). The class's expected value of their win is $100 million and $200 million. Thus, MSFT is looking to settle at anything less than $225 million. A settlement offer of, say, $250 million wouldn't be worth it to MSFT because they think that at MOST the class has a 75% chance of winning $300 million, and so at that number MSFT would rather take the chance and litigate fully. On the other hand, the class won't settle for less than $100 million. An offer of, say, $80 million wouldn't be worth it to the class because they believe that they have at LEAST a 25% chance of winning $400 million.
Thus, in this example, MSFT and the class will want to settle somewhere between $100 and $225 million.
You can also see in this example that there's no consideration whatsoever of what the effect of the judgment will be on MSFT. The plaintiffs are only looking to see how much they can be compensated. A judgment might involve consideration of the public in the form of punitive damages, but a settlement is nothing but an agreement between the plaintiffs and the defendants.
This was a class action suit. "The public" is not the same as "the class." In any suit, of course, damages are paid to the ones who suffered AND SUED for the suffering. Here, same thing -- damages paid out are damages to the class, not to "the public."
If you want a payout to the public, the government is the only entity that can sue on behalf of the public and get a payout to the public.
The lawyers sucked in this case, and they shouldn't even have collected their 20%
Because of the public thing? The lawyers' responsibility is TO THEIR CLIENTS -- "the public" is not their client, the class is. If you think they suck because they didn't get a bigger settlement, well, that's a different story...
How are the clients screwed??? Sure, $5-$12 is a pittance, but they did *no work whatsoever.* They WOULDN'T EVEN HAVE SUED if there were no class action suit! (How do I know this? Because no one is ever required to join a class action suit. If you want to sue by yourself, you have ever right to -- you just have to opt out of the class. Presumably -- and this is an entirely justifiable, reasonable presumption -- everyone who is joined in the class WANTS to be a member of it.)
You think you were "screwed" in the BofA settlement? Tell me, would have have sued otherwise? Did you do ANY WORK WHATSOEVER to help the lawyers?
Zittrain proves to be yet another intelligent person who can't see past the "we must have copyright or there will be no creativity" fallacy.
Interestingly enough, it's not people like Zittrain that think this -- it's people like Jack Valenti and others who believe we need stronger copyright protection who believe this.
People like Zittrain -- i.e., IP scholars -- believe that IP laws are here not to incentivize creativity, but to incentivize the *maximum amount of creativity versus the costs.* Everyone knows that "people will still get off their asses and make stuff" even if we don't have IP protection; I don't know of any IP scholars who would argue with that or who don't know that fact. The real question is whether we can have *more* people get off their asses and make stuff if we provide IP protection. It's about maximizing marginal benefit; i.e., providing enough IP protection such that the marginal benefit of the creation of more original work equals the marginal cost to society of stronger copyright protection. This is the prevailing view among law and econ types who are interested in IP law.
It's people like Valenti, who think of copyrights or patents as "property", that believe we should have stronger IP protection -- tantamount to the law we have that protects tangible property. You're right that calling IP "property" is a bad thing, because it fails to remind people that IP protection is really a set of rights that can and should be changed as it becomes clearer what the proper marginal cost-marginal benefit balance is. But to get rid of IP protection altogether will certainly be a net loss to society.
One good example is patents for drugs. Clearly we would have drug research even if we didn't have IP protection -- that's what universities are for. But not many pharmaceutical companies would be willing to put in the billions of dollars of research they do now if the resulting drug wouldn't be protected once they started production -- although probably some would. But would you rather have a few drugs be produced by a couple companies, or a lot of drugs produced by a lot of companies?
You might think that contracts could replace IP law, but obviously that would be onerous. Indeed, IP law can be viewed as a more efficient proxy for exclusivity contracts. (Well, just like any body of law that involves the whole of society.)
Anyway, wish me luck - today is day 3 of the Bar Exam;) So far, so good... although that multistate 200 m/c question test really is a bitch.
Oh man, I didn't know you were in the middle of your bar exam... sorry about the long post. days -- CA? You'll be fine, but good luck! The really hard part is the waiting... Anyway, I'll just comment on the last part, although there are good points to discuss all around. (I also have work to do!!)
Yeah, that whole droit morale is a French thing. That in and of itself makes it suspect and presumptively stupid. It doesn't deal with infringement, though. It deals with the right of an author not to have his work altered. Not so much regarding derivative works - that's normal copyright law - but it usually has to do with, for example, someone spraypainting the sculpture you made and put in the public park. But the BIG difference is that the "moral right" remains with the individual who created the work, even if and after he assigns his copyright over to someone else.... and even if the work was a work for hire. That is so stupid the only way the french can justify it is to stick the word "morale" in the description. It's kinda like the PATRIOT Act... if you're not for it, you're not a "patriot." If you're not for droit morale, you're not a very "morale" french citizen. The moral right/droit morale concept is not about adding a moral element to infringement... it's just a funny name given by the french to their silly little system.
Interesting -- that's narrower in scope than what I learned about it. I understood that droite morale would allow, for example, an artist to prevent his painting from being cut up and turned into another piece of art (that would be derivative), or a musician to prevent his music from being sampled in part (that would be used in a derivative work). I'll certainly admit I'm a corporate lawyer, not an IP lawyer, though I did well in my IP classes and I try to keep up nowadays.:)
Yes, droite morale is a French thing, but I think the moral rights concept is broader -- for example, at least to me, it encompasses the "cultural products" idea, which says that cultures have an important stake in the maintaining the integrity/authenticity of their "products" (e.g., their native wares, their literature, etc.), and that they should be given certain extra rights in order to protect it. It's definitely based on IP rights.
The moral right/droit morale concept is not about adding a moral element to infringement... it's just a funny name given by the french to their silly little system.
Hmm. Two things: first, when I talk about infringement, I'm talking about IP rights, because that's what it's really all about, right? IP rights aren't anything more than rights to sue for "infringement." By "infringement" I don't necessarily mean contravention of section 106 rights, but rather contravention of IP rights, whatever we think those rights are.
The other thing is that I guess we might differ on our definitions of "moral." I do think that the idea that an author or a culture has rights to maintain the integrity of their work is a "moral" issue. It's not straight up a question of good versus evil, but I do think it's a question involving shades of right and wrong, which I think reflects what most moral issues are.
Anyway, just a few short thoughts, but good luck! Hope you're going on a bar trip, and have fun!
No, you are confusing "specific intent" crimes with "general intent" crimes. Mala prohibita and mala in se have nothing to do with mental states by definition, although most malum prohibitum offenses (i.e. speeding) do not require a specific mens rea.
I'm not mixing them up. I never said that either of them have anything to do with mental states by definition. I said that there isn't much of a useful distinction, especially in this day and age -- i.e., nowadays we have much deeper discourse about what we think is actually "inherently" right or wrong, and thus the lines are much blurrier than they would have been when society first started talking about mala prohibita and mala in se as discrete concepts. In fact, I said "The clearest difference between the two is that mala prohibita tend to be offenses that don't require any consideration about an actor's mens rea", which is very similar to what you say ("although most malum prohibitum offenses (i.e. speeding) do not require a specific mens rea"). And when I say "the clearest difference," I imply that it's still not absolutely clear that one offense doesn't require consideration about mens rea compared to the other.
Is downloading approx 100 songs per year inherently evil? Well, the RIAA will tell you that it is, but the rest of the population knows that its not. Malum in se? Not a fucking chance. It shouldn't even be malum prohibitum.
I hope your crim law professor didn't waste any time trying to get you to explain the difference between the two! It's just not useful. I understand where you're coming from; at heart, I agree that downloading 100 songs isn't inherently evil, or even kind of evil. But therein lies the problem: that's what you and I think, but what does society think? What do lawmakers -- who ostensibly represent society -- think? You hear all the time the reference to downloading songs off Kazaa/Napster/etc. as "stealing". Is stealing not evil? You imply in your post that it is. If it is rightfully analogous to stealing, then of course it's "evil". No doubt you (and I) would argue that it's not analogous to stealing, but that's irrelevant; it's what society as a whole thinks that matters. I think we'd agree that mala prohibita should have consequences nowhere near as severe as mala in se. But if there's confusion about what particular offense is stealing (i.e., "evil") and what's not, then I don't see how the distinction between the two is useful at all.
Certainly, the distinction isn't a hard guiding principle for society and its lawmakers, as it shouldn't be. That was the point of my post.
But the only reason why there are so many civil suits lately is because the RIAA does not need probable cause (or even reasonable suspicion) to file civil infringement charges against you.
Of course they don't -- it's a civil suit! Your problem, I'm sure, isn't that they can willy-nilly file civil infringement suits against people. This is the way the American legal system is set up -- notice pleading is a low standard to reach in order to file suits easily, and then we have heightened standards later to even it out. Your problem is more that the RIAA can issue subpoenas without having filed suit in the first place. Right? Well, I have the same problem. But you must understand where the lawmakers were coming from: there's obvious, enormous copyright infringement going on; infringement is illegal; but no one can figure out who's doing the infringing! What balance of rights are you going to set? Think long and hard, because that's what the lawmakers did (hopefully). They may have been unduly influenced by the ??AA's FUD and perceived the wrong balance, but that's for us and future lawmakers to figure out.
One person's malum prohibitum is another's malum in se. I don't know if I agree with that statement. One can make a lame, attenuated argument that any violation of any law (driving 36 in a 35 zone) is inherently evil (i.e. "speeding endangers everyone, and you p
File sharing copyright infringement is malum prohibitum, not malum in se.
The distinction between mala prohibita and mala in se is not much more than a philosophical exercise, so saying "People shouldn't go to jail for trivial little malum prohibitum offenses" isn't very useful. One person's malum prohibitum is another's malum in se.
The clearest difference between the two is that mala prohibita tend to be offenses that don't require any consideration about an actor's mens rea. But criminal copyright infringement (section 501 plus section 506), among other elements, requires WILLFUL infringement, which of course imposes a mens rea element, unlike civil copyright infringement (just section 501).
At any rate, your post misses the point that there are copyright infringements that you can go to jail for, and there are copyright infringements that you will only get sued for. There's a big difference between the two.
Sounds like the RSA secure-ID keys that many gov't agencies / labs use.
Not just agencies and labs; most big companies use them. They're definitely pretty cool. Older RSA secure-IDs used to be credit card sized (Although a bit more than twice as thick); people would just stick them in their wallets.
OMG!!! Because ALL 50,500 current employees and let's-say-15,000 past employees and all future employees at MSFT are EVIL!!!!
Granted, when Mr. Yeager says "I was part of an elite team of business development and technology professionals tasked with answering Netscape's threat to Microsoft's dominance in desktop and server technology" on his web page, it does sound fishy. But the way you put it.....
My interpretation's not the same as the questioner-- it's not that the perjury is in affirming that the recording is illegal, the perjury is in claiming that they are "authorized to act on behalf of the copyright owner" when they're not. Because they're not. Open and shut.
I don't think you have a different interpretation. The questioner gives this analogy: "if the police are looking for a 'Caucasian male, age 50-60, bald, 200-225 pounds,' can I testify in a court of law that the 18 year-old caucasian male with a ponytail, weighing 140-150 pounds, is in fact the suspect since he is, after all, a caucasian male?" This clearly is supposed to analogize to the identity of the copyright holder issue.
At any rate, even if your interpretation is different, it's still wrong. Section 512(c)(3) requires: "A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed." Emphasis mine. That's pretty clear to me. The provision doesn't talk about whether the complaining party is claiming to be authorized to act on behalf of the owner of the copyright of the specific work they're complaining about, which is what you are saying.
Thus: the RIAA -- the complaining party -- claims, under penalty of perjury, that it is authorized to act on behalf of the R&B singer Usher, who owns the exclusive right to distribute copies of his songs, which seemed to be infringed by unauthorized MP3s on the Penn State network.
If you really think that the RIAA is totally free & clear in this, then why did they issue a formal apology, give the poor Prof. an Usher T-shirt and CD, and claim that it was an error by a temp worker?
Because it's an embarrassing mistake, of course. Mistakes are bad public relations, no matter what. (You may think that the RIAA's behavior in general is bad PR, but that's a totally different story.)
he always points out that personal use is not a part of fair use
He's right, but don't misunderstand him: personal use in and of itself is not going to make a particular use "fair use," but personal use (versus commercial use) is certainly a factor in determining the character of the use as a "fair use." For example, making a copy of a CD for a friend is arguably a "personal use", but certainly isn't a "fair use." Copying an article from a journal for research for a paper is also a "personal use," but, together with other 107 factors, is probably a fair use.
Then you're misunderstanding his answer. Your interpretation is the same as the questioner's, and O'Leary said that the questioner is interpreting the provision incorrectly.
The RIAA is invoking the rights of Usher, the R&B singer, for whom they are the authorized agent to give takedown notices. For purposes of that perjury provision, it's irrelevant who the copyright holder of the allegedly infringing work is. The only thing that matters for that provision is whose right is being invoked.
Notice that the DOJ attorney ended his answer with "In other words, the perjury clause may be violated if you seek a DMCA subpoena without the authorization of the copyright owner.
We are unaware of any prosecutions for violating this provision of the DMCA at this time."
He's clearly not saying that this action wasn't a DMCA violation, he's saying that he's unaware of a prosecution for violating the perjury clause.
Again, you're reading this incorrectly. In that quote, he's summarizing his explanation and then saying that he's never heard of a prosecution for violating the perjury provision. He's certainly not even talking about the Usher case.
The codification of fair use in section 107 is a list of factors that a court should think about in determining what is fair use, so it's not a complete list of fair uses. For your examples, though:
Timeshifting is fair use under the Betamax case;
"backing up" recordings for personal use is a codified "fair use" under the Audio Home Recordings Act, and backing up software is "fair use" under section 117;
making a copy for another location is the same as the previous bullet, as long as it's for personal use;
making a copy for a friend is NOT a fair use under 107 or the AHRA; and
photocopying a page from a book at a library is a fair use under 107 -- re-read the first paragraph of it ("Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright").
Remember that, ultimately, fair use depends on the character of the copying.
FYI, the software was called Stacker, and Quarterdeck didn't make Stacker -- Stac Electronics did. Neither company exists anymore. Quarterdeck struggled after Windows 95 came out, and was eventually bought by Symantec. Stac changed its name to Previo, then wound up its operations.
Especially since, "Comments are owned by the Poster" is misleading authors about the terms.
Why is this misleading? Your comments are still owned by you. This means that all copyright rights a copyright holder has accrue to you, and you alone. By posting on Slashdot, you agree to abide by its terms of service, which essentially require you to give Slashdot an open-ended license to copy your comments. But you and you alone still own the comments. In the end, only you and Slashdot have the right to copy your comments. You pose the situation where you become a CEO and Slashdot is allowed to publish your comments, but the other -- and only other -- side of the coin is that if you become a famous CEO, ONLY YOU and Slashdot can publish your comments. That's what it means to be a copyright owner (and licensor to Slashdot).
That's what you get for the ability to post to Slashdot. Those ToS probably won't be found invalid for a number of reasons, the main one being that *you still own the copyright.*
I think you misunderstand what the clause means. The RIAA can at all times legitimately say that it is authorized to act on behalf of Usher, the singer. *That's* where the perjury comes in -- before and during an enforcement action. Just because afterwards it is discovered that the MP3 actually was not infringing doesn't mean that the RIAA has suddenly perjured itself.
Another way to look at it is this. Say you've written a P2P program ("P2Pster") and allowed several servers to host a copy of it for download. The RIAA, wanting to shut down distribution of your program, comes along and sends to each server, "remove your copies of P2Pster -- we are authorized by OWJones to enforce his rights, and we demand you stop infringing." *That* would be perjury.
In Peter Usher's case, the RIAA would have perjured itself if it sent letters to the different hosts saying "remove your copies of Peter Usher's recording. We are authorized by Professor Usher to enforce his rights, and we demand you stop infringing." But it was attempting to enforce the rights of Usher, the singer, and even though in the end they'd made a mistake (i.e., there was no infringement), they certainly didn't perjure themselves.
A couple short points. First, to correct the original post, the SEC is not the agency that handles antitrust matters. The FTC and the DOJ have joint power to enforce the Sherman and Clayton Acts.
Second, currently, the Oracle/Peoplesoft combination is being reviewed by the DOJ. The DOJ has issued what's called a "Second Request", which is literally a second request for more information about the companies involved. In any merger that meets certain threshold requirements, the companies desiring to merge must file a notice with the feds under the Hart-Scott-Rodino Act (part of the antitrust laws). If the reviewing agency (the FTC and DOJ sometimes fight over the right to review certain transactions) is wary of the merger, they'll ask for some preliminary information; they'll try to get a better idea of what the market impact might be. (This is sometimes called a "Quick Look.") If there's a big impact, the reviewing agency will often make a "Second Request" for information in order to more precisely define the markets (or market) that the companies compete in. The Second Request is often a rather broad net that asks for a ton of primary source information -- people's email, drafts of documents, presentations, notes in notepads, even the stuff written on people's whiteboards in their offices!
Once the reviewing agency gets all the info (when the companies certify that they have "substantially complied" with the second request), it has 30 days to sift through all of it and come up with a decision as to whether it will file suit to enjoin the merger.
Oracle got its Second Request at the end of June (they're the only ones getting a formal review right now because of the hostile nature of Oracle's transaction). I don't think they've substantially complied yet, so this process may take a while.
Why does music have a special clause for something like that while you would need to purchase both a paper copy and an ebook of the same work?
Good question. The short answer is lots of lobbying Congress and some good court cases. The Audio Home Recording Act of 1992 specifically exempted copying of musical recordings for noncommercial use. There's no analogous right to make complete copies of other works (except the copyright act's section 108 exemption for libraries and archives).
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Usually, for that sort of meaning, one would say either "the social impact of the credit card SHOULD NOT be underestimated" OR "the social impact of the credit card CANNOT be overestimated."
You've lost the game in that case. The Good and the Right are everything when deciding how laws should or should not be made. People in positions of authority and power are *required* to make such decisions many times a day. By *not* being willing to decide such things you have already let someone else make the decision.
When it comes to intellectual, expressive creations, THERE IS NO GOOD AND RIGHT. Over my dead body will people in positions of authority and power decide what's good and right music, what's good and right literature, what's good and right stuff to invent. This is why IP law is set on incentivizing the creation of more work, and that's it. I want the lawmakers to only only think about the amount of extra creation, not the quality of the extra creation, and I want them to balance that against things like fair use, public domain, free speech and consumer prices. That's it. I will decide if I like the extra work that has been created. I may like it, I may not, but at least it's out there and I had the chance to try and decide.
We don't *need* a certain kind of music. We need music PERIOD. As long as there's some kind of music, the need is satisfied. When you're sick you need a certian type of treatment, but that's not the case for music. That's why it ought not to be protected by copyright at all.
We already have music. We would have music without IP law. My point is that it's always better to have MORE music. If there is a certain amount of additional music that may be produced because of IP protection, then that's great. I definitely don't follow the logic that "that's why it ought not to be protected by copyright at all."
Music is much healthier when the creators are closer to the consumers, when the consumers are participants, as in a live performance. Music is healthier when it can be freely shared, as is the case in folk traditions. Shrink wrapped music takes musicians away from audiences, even though it may create audiences for musicians.
I'm supposed to simply accept as fact that music is much healthier when all that you say happens?? Sorry. My definition of music may not even coincide with yours. My definition of health may be completely different. Your assertion seems very snotty to me.
There now exists many times more music than any person could listen to in a lifetime. To say that that is enough of a good thing is not to say that there are not good things created in every generation. But why do we keep adding fertilizer to our garden when it is already overgrown? The "More is always better" philosophy is a North American bias or pathology. More is *not* always better. Sometimes more is worse because it depletes or dilutes the Good.
This is just silly. What is the Good? Who decides what is the Good? What if the "more" music is Good too?
Society shouldn't encourage "Good" or "Bad" music (or any other IP) creation -- just like it shouldn't encourage "Good" or "Bad" speech.
The more important question is this: Will you get the results you need? . . . What you really want is a way to encourage the right kind of output, the needed output, not just blindly throw favours at some particular sector of the economy.
/. But who's to say that Britney is "bad" and some indie band is "good"? It's certainly not the job of lawmakers to fashion laws that would reduce the production of Britneys and increase the production of indie bands. Their job is to increase the production of music. You may lament that there's too much Britney, but frankly, indie bands are still making music, are they not?
This is a perfectly valid question, but it's not one that has an easy answer. Your example of a cure for cancer is fine, but the question of "need" is much subtler. Who is to say what is "needed"? For drugs, it's somewhat easier -- of course we'd rather have a cure for cancer than a drug that combats cancer symptoms. But what about, say, music? What kind of music do we "need"? One might analogize and argue that the current IP system encourages "crap" like Britney Spears and the Backstreet Boys, and depresses the distribution of "good" music produced on indie labels. This, it would seem, is bad -- I hear echoes of this argument a lot on
The same goes for "useless" patents; say, patents for stuff you'd buy late at night on an infomercial. The point is to encourage ANY production (up to where the marginal benefit == marginal cost)-- the presumption is that ANY additional production (up to MB==MC) is good for society, notwithstanding people's tastes or better judgment. It's a good presumption, too -- I'm not willing pass judgment on what is "needed" and what's not, and I'm not willing to let anyone else decide it.
Of course, with the creative output of academia now hobbled by "market relevance" and special interest lobbies, no engine of intellectual freedom is left.
Do you really believe this? First, if you look at the work of any scholars in any discipline at all the universities of this world, I'd be willing to bet that the vast majority of the work is completely market irrelevant. Second, I don't think there was ever a time when universities produced work while not beholden to anyone. Patrons -- especially royalty, but more recently, simply rich people -- have always given money to academia for their special interests. Hundreds of years ago, this is the only thing that happened; universities didn't always have the enormous endowments they have now. Even if private interests weren't involved, the government was, not only the royalty I mentioned above, but like in the past 100 years, all kinds of government -- capitalist/democratic, socialist, communist. Today isn't much different than any time in our past, except now the universities themselves can sell the work.
This wasn't a judgment, this was a settlement. You can't lump them together.
A settlement is an agreement between the plaintiff and the defendant to a dollar amount that makes everyone "happy" enough to drop litigating the case. Here, Microsoft is essentially saying, fine, it's worth $202 million to us to be able to drop this case and the risk that we'd be adjudged against. The plaintiffs are essentially saying, $202 million takes care of enough of our "suffering" to make us drop this case AND the risk that we'd be adjudged against.
One way to look at it is an expected value analysis. Say MSFT puts a 50%-75% probability on losing the case, and that if they did lose, they would suffer a judgment of $300 million. The class puts a 25%-50% chance on winning the case, but a judgment of $400 million if they did win. MSFT's expected value of their loss is between $150 million and $225 million (probability * judgment amount). The class's expected value of their win is $100 million and $200 million. Thus, MSFT is looking to settle at anything less than $225 million. A settlement offer of, say, $250 million wouldn't be worth it to MSFT because they think that at MOST the class has a 75% chance of winning $300 million, and so at that number MSFT would rather take the chance and litigate fully. On the other hand, the class won't settle for less than $100 million. An offer of, say, $80 million wouldn't be worth it to the class because they believe that they have at LEAST a 25% chance of winning $400 million.
Thus, in this example, MSFT and the class will want to settle somewhere between $100 and $225 million.
You can also see in this example that there's no consideration whatsoever of what the effect of the judgment will be on MSFT. The plaintiffs are only looking to see how much they can be compensated. A judgment might involve consideration of the public in the form of punitive damages, but a settlement is nothing but an agreement between the plaintiffs and the defendants.
This was a class action suit. "The public" is not the same as "the class." In any suit, of course, damages are paid to the ones who suffered AND SUED for the suffering. Here, same thing -- damages paid out are damages to the class, not to "the public."
If you want a payout to the public, the government is the only entity that can sue on behalf of the public and get a payout to the public.
The lawyers sucked in this case, and they shouldn't even have collected their 20%
Because of the public thing? The lawyers' responsibility is TO THEIR CLIENTS -- "the public" is not their client, the class is. If you think they suck because they didn't get a bigger settlement, well, that's a different story...
How are the clients screwed??? Sure, $5-$12 is a pittance, but they did *no work whatsoever.* They WOULDN'T EVEN HAVE SUED if there were no class action suit! (How do I know this? Because no one is ever required to join a class action suit. If you want to sue by yourself, you have ever right to -- you just have to opt out of the class. Presumably -- and this is an entirely justifiable, reasonable presumption -- everyone who is joined in the class WANTS to be a member of it.)
You think you were "screwed" in the BofA settlement? Tell me, would have have sued otherwise? Did you do ANY WORK WHATSOEVER to help the lawyers?
Zittrain proves to be yet another intelligent person who can't see past the "we must have copyright or there will be no creativity" fallacy.
Interestingly enough, it's not people like Zittrain that think this -- it's people like Jack Valenti and others who believe we need stronger copyright protection who believe this.
People like Zittrain -- i.e., IP scholars -- believe that IP laws are here not to incentivize creativity, but to incentivize the *maximum amount of creativity versus the costs.* Everyone knows that "people will still get off their asses and make stuff" even if we don't have IP protection; I don't know of any IP scholars who would argue with that or who don't know that fact. The real question is whether we can have *more* people get off their asses and make stuff if we provide IP protection. It's about maximizing marginal benefit; i.e., providing enough IP protection such that the marginal benefit of the creation of more original work equals the marginal cost to society of stronger copyright protection. This is the prevailing view among law and econ types who are interested in IP law.
It's people like Valenti, who think of copyrights or patents as "property", that believe we should have stronger IP protection -- tantamount to the law we have that protects tangible property. You're right that calling IP "property" is a bad thing, because it fails to remind people that IP protection is really a set of rights that can and should be changed as it becomes clearer what the proper marginal cost-marginal benefit balance is. But to get rid of IP protection altogether will certainly be a net loss to society.
One good example is patents for drugs. Clearly we would have drug research even if we didn't have IP protection -- that's what universities are for. But not many pharmaceutical companies would be willing to put in the billions of dollars of research they do now if the resulting drug wouldn't be protected once they started production -- although probably some would. But would you rather have a few drugs be produced by a couple companies, or a lot of drugs produced by a lot of companies?
You might think that contracts could replace IP law, but obviously that would be onerous. Indeed, IP law can be viewed as a more efficient proxy for exclusivity contracts. (Well, just like any body of law that involves the whole of society.)
Hope the bar exam went well...
Anyway, wish me luck - today is day 3 of the Bar Exam ;) So far, so good... although that multistate 200 m/c question test really is a bitch.
:)
Oh man, I didn't know you were in the middle of your bar exam... sorry about the long post. days -- CA? You'll be fine, but good luck! The really hard part is the waiting... Anyway, I'll just comment on the last part, although there are good points to discuss all around. (I also have work to do!!)
Yeah, that whole droit morale is a French thing. That in and of itself makes it suspect and presumptively stupid. It doesn't deal with infringement, though. It deals with the right of an author not to have his work altered. Not so much regarding derivative works - that's normal copyright law - but it usually has to do with, for example, someone spraypainting the sculpture you made and put in the public park. But the BIG difference is that the "moral right" remains with the individual who created the work, even if and after he assigns his copyright over to someone else.... and even if the work was a work for hire. That is so stupid the only way the french can justify it is to stick the word "morale" in the description. It's kinda like the PATRIOT Act... if you're not for it, you're not a "patriot." If you're not for droit morale, you're not a very "morale" french citizen. The moral right/droit morale concept is not about adding a moral element to infringement... it's just a funny name given by the french to their silly little system.
Interesting -- that's narrower in scope than what I learned about it. I understood that droite morale would allow, for example, an artist to prevent his painting from being cut up and turned into another piece of art (that would be derivative), or a musician to prevent his music from being sampled in part (that would be used in a derivative work). I'll certainly admit I'm a corporate lawyer, not an IP lawyer, though I did well in my IP classes and I try to keep up nowadays.
Yes, droite morale is a French thing, but I think the moral rights concept is broader -- for example, at least to me, it encompasses the "cultural products" idea, which says that cultures have an important stake in the maintaining the integrity/authenticity of their "products" (e.g., their native wares, their literature, etc.), and that they should be given certain extra rights in order to protect it. It's definitely based on IP rights.
The moral right/droit morale concept is not about adding a moral element to infringement... it's just a funny name given by the french to their silly little system.
Hmm. Two things: first, when I talk about infringement, I'm talking about IP rights, because that's what it's really all about, right? IP rights aren't anything more than rights to sue for "infringement." By "infringement" I don't necessarily mean contravention of section 106 rights, but rather contravention of IP rights, whatever we think those rights are.
The other thing is that I guess we might differ on our definitions of "moral." I do think that the idea that an author or a culture has rights to maintain the integrity of their work is a "moral" issue. It's not straight up a question of good versus evil, but I do think it's a question involving shades of right and wrong, which I think reflects what most moral issues are.
Anyway, just a few short thoughts, but good luck! Hope you're going on a bar trip, and have fun!
No, you are confusing "specific intent" crimes with "general intent" crimes. Mala prohibita and mala in se have nothing to do with mental states by definition, although most malum prohibitum offenses (i.e. speeding) do not require a specific mens rea.
I'm not mixing them up. I never said that either of them have anything to do with mental states by definition. I said that there isn't much of a useful distinction, especially in this day and age -- i.e., nowadays we have much deeper discourse about what we think is actually "inherently" right or wrong, and thus the lines are much blurrier than they would have been when society first started talking about mala prohibita and mala in se as discrete concepts. In fact, I said "The clearest difference between the two is that mala prohibita tend to be offenses that don't require any consideration about an actor's mens rea", which is very similar to what you say ("although most malum prohibitum offenses (i.e. speeding) do not require a specific mens rea"). And when I say "the clearest difference," I imply that it's still not absolutely clear that one offense doesn't require consideration about mens rea compared to the other.
Is downloading approx 100 songs per year inherently evil? Well, the RIAA will tell you that it is, but the rest of the population knows that its not. Malum in se? Not a fucking chance. It shouldn't even be malum prohibitum.
I hope your crim law professor didn't waste any time trying to get you to explain the difference between the two! It's just not useful. I understand where you're coming from; at heart, I agree that downloading 100 songs isn't inherently evil, or even kind of evil. But therein lies the problem: that's what you and I think, but what does society think? What do lawmakers -- who ostensibly represent society -- think? You hear all the time the reference to downloading songs off Kazaa/Napster/etc. as "stealing". Is stealing not evil? You imply in your post that it is. If it is rightfully analogous to stealing, then of course it's "evil". No doubt you (and I) would argue that it's not analogous to stealing, but that's irrelevant; it's what society as a whole thinks that matters. I think we'd agree that mala prohibita should have consequences nowhere near as severe as mala in se. But if there's confusion about what particular offense is stealing (i.e., "evil") and what's not, then I don't see how the distinction between the two is useful at all.
Certainly, the distinction isn't a hard guiding principle for society and its lawmakers, as it shouldn't be. That was the point of my post.
But the only reason why there are so many civil suits lately is because the RIAA does not need probable cause (or even reasonable suspicion) to file civil infringement charges against you.
Of course they don't -- it's a civil suit! Your problem, I'm sure, isn't that they can willy-nilly file civil infringement suits against people. This is the way the American legal system is set up -- notice pleading is a low standard to reach in order to file suits easily, and then we have heightened standards later to even it out. Your problem is more that the RIAA can issue subpoenas without having filed suit in the first place. Right? Well, I have the same problem. But you must understand where the lawmakers were coming from: there's obvious, enormous copyright infringement going on; infringement is illegal; but no one can figure out who's doing the infringing! What balance of rights are you going to set? Think long and hard, because that's what the lawmakers did (hopefully). They may have been unduly influenced by the ??AA's FUD and perceived the wrong balance, but that's for us and future lawmakers to figure out.
One person's malum prohibitum is another's malum in se. I don't know if I agree with that statement. One can make a lame, attenuated argument that any violation of any law (driving 36 in a 35 zone) is inherently evil (i.e. "speeding endangers everyone, and you p
File sharing copyright infringement is malum prohibitum, not malum in se.
The distinction between mala prohibita and mala in se is not much more than a philosophical exercise, so saying "People shouldn't go to jail for trivial little malum prohibitum offenses" isn't very useful. One person's malum prohibitum is another's malum in se.
The clearest difference between the two is that mala prohibita tend to be offenses that don't require any consideration about an actor's mens rea. But criminal copyright infringement (section 501 plus section 506), among other elements, requires WILLFUL infringement, which of course imposes a mens rea element, unlike civil copyright infringement (just section 501).
At any rate, your post misses the point that there are copyright infringements that you can go to jail for, and there are copyright infringements that you will only get sued for. There's a big difference between the two.
It's funnier with two economists -- it's a joke, that way. With the trader, you're right, it's like a koan. Not so funny.
Sounds like the RSA secure-ID keys that many gov't agencies / labs use.
Not just agencies and labs; most big companies use them. They're definitely pretty cool. Older RSA secure-IDs used to be credit card sized (Although a bit more than twice as thick); people would just stick them in their wallets.
not only USED TO WORK FOR MICROSOFT
OMG!!! Because ALL 50,500 current employees and let's-say-15,000 past employees and all future employees at MSFT are EVIL!!!!
Granted, when Mr. Yeager says "I was part of an elite team of business development and technology professionals tasked with answering Netscape's threat to Microsoft's dominance in desktop and server technology" on his web page, it does sound fishy. But the way you put it.....
My interpretation's not the same as the questioner-- it's not that the perjury is in affirming that the recording is illegal, the perjury is in claiming that they are "authorized to act on behalf of the copyright owner" when they're not. Because they're not. Open and shut.
I don't think you have a different interpretation. The questioner gives this analogy: "if the police are looking for a 'Caucasian male, age 50-60, bald, 200-225 pounds,' can I testify in a court of law that the 18 year-old caucasian male with a ponytail, weighing 140-150 pounds, is in fact the suspect since he is, after all, a caucasian male?" This clearly is supposed to analogize to the identity of the copyright holder issue.
At any rate, even if your interpretation is different, it's still wrong. Section 512(c)(3) requires: "A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. " Emphasis mine. That's pretty clear to me. The provision doesn't talk about whether the complaining party is claiming to be authorized to act on behalf of the owner of the copyright of the specific work they're complaining about, which is what you are saying.
Thus: the RIAA -- the complaining party -- claims, under penalty of perjury, that it is authorized to act on behalf of the R&B singer Usher, who owns the exclusive right to distribute copies of his songs, which seemed to be infringed by unauthorized MP3s on the Penn State network.
If you really think that the RIAA is totally free & clear in this, then why did they issue a formal apology, give the poor Prof. an Usher T-shirt and CD, and claim that it was an error by a temp worker?
Because it's an embarrassing mistake, of course. Mistakes are bad public relations, no matter what. (You may think that the RIAA's behavior in general is bad PR, but that's a totally different story.)
he always points out that personal use is not a part of fair use
He's right, but don't misunderstand him: personal use in and of itself is not going to make a particular use "fair use," but personal use (versus commercial use) is certainly a factor in determining the character of the use as a "fair use." For example, making a copy of a CD for a friend is arguably a "personal use", but certainly isn't a "fair use." Copying an article from a journal for research for a paper is also a "personal use," but, together with other 107 factors, is probably a fair use.
The RIAA is invoking the rights of Usher, the R&B singer, for whom they are the authorized agent to give takedown notices. For purposes of that perjury provision, it's irrelevant who the copyright holder of the allegedly infringing work is. The only thing that matters for that provision is whose right is being invoked.
Again, you're reading this incorrectly. In that quote, he's summarizing his explanation and then saying that he's never heard of a prosecution for violating the perjury provision. He's certainly not even talking about the Usher case.
Timeshifting is fair use under the Betamax case;
"backing up" recordings for personal use is a codified "fair use" under the Audio Home Recordings Act, and backing up software is "fair use" under section 117;
making a copy for another location is the same as the previous bullet, as long as it's for personal use;
making a copy for a friend is NOT a fair use under 107 or the AHRA; and
photocopying a page from a book at a library is a fair use under 107 -- re-read the first paragraph of it ("Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright").
Remember that, ultimately, fair use depends on the character of the copying.
FYI, the software was called Stacker, and Quarterdeck didn't make Stacker -- Stac Electronics did. Neither company exists anymore. Quarterdeck struggled after Windows 95 came out, and was eventually bought by Symantec. Stac changed its name to Previo, then wound up its operations.
Especially since, "Comments are owned by the Poster" is misleading authors about the terms.
Why is this misleading? Your comments are still owned by you. This means that all copyright rights a copyright holder has accrue to you, and you alone. By posting on Slashdot, you agree to abide by its terms of service, which essentially require you to give Slashdot an open-ended license to copy your comments. But you and you alone still own the comments. In the end, only you and Slashdot have the right to copy your comments. You pose the situation where you become a CEO and Slashdot is allowed to publish your comments, but the other -- and only other -- side of the coin is that if you become a famous CEO, ONLY YOU and Slashdot can publish your comments. That's what it means to be a copyright owner (and licensor to Slashdot).
That's what you get for the ability to post to Slashdot. Those ToS probably won't be found invalid for a number of reasons, the main one being that *you still own the copyright.*
There are popups and a Gator install?
I think you misunderstand what the clause means. The RIAA can at all times legitimately say that it is authorized to act on behalf of Usher, the singer. *That's* where the perjury comes in -- before and during an enforcement action. Just because afterwards it is discovered that the MP3 actually was not infringing doesn't mean that the RIAA has suddenly perjured itself.
Another way to look at it is this. Say you've written a P2P program ("P2Pster") and allowed several servers to host a copy of it for download. The RIAA, wanting to shut down distribution of your program, comes along and sends to each server, "remove your copies of P2Pster -- we are authorized by OWJones to enforce his rights, and we demand you stop infringing." *That* would be perjury.
In Peter Usher's case, the RIAA would have perjured itself if it sent letters to the different hosts saying "remove your copies of Peter Usher's recording. We are authorized by Professor Usher to enforce his rights, and we demand you stop infringing." But it was attempting to enforce the rights of Usher, the singer, and even though in the end they'd made a mistake (i.e., there was no infringement), they certainly didn't perjure themselves.
A couple short points. First, to correct the original post, the SEC is not the agency that handles antitrust matters. The FTC and the DOJ have joint power to enforce the Sherman and Clayton Acts.
Second, currently, the Oracle/Peoplesoft combination is being reviewed by the DOJ. The DOJ has issued what's called a "Second Request", which is literally a second request for more information about the companies involved. In any merger that meets certain threshold requirements, the companies desiring to merge must file a notice with the feds under the Hart-Scott-Rodino Act (part of the antitrust laws). If the reviewing agency (the FTC and DOJ sometimes fight over the right to review certain transactions) is wary of the merger, they'll ask for some preliminary information; they'll try to get a better idea of what the market impact might be. (This is sometimes called a "Quick Look.") If there's a big impact, the reviewing agency will often make a "Second Request" for information in order to more precisely define the markets (or market) that the companies compete in. The Second Request is often a rather broad net that asks for a ton of primary source information -- people's email, drafts of documents, presentations, notes in notepads, even the stuff written on people's whiteboards in their offices!
Once the reviewing agency gets all the info (when the companies certify that they have "substantially complied" with the second request), it has 30 days to sift through all of it and come up with a decision as to whether it will file suit to enjoin the merger.
Oracle got its Second Request at the end of June (they're the only ones getting a formal review right now because of the hostile nature of Oracle's transaction). I don't think they've substantially complied yet, so this process may take a while.
How can a restriction against violent games be a permissible "time, place and manner" restriction?
Why does music have a special clause for something like that while you would need to purchase both a paper copy and an ebook of the same work?
Good question. The short answer is lots of lobbying Congress and some good court cases. The Audio Home Recording Act of 1992 specifically exempted copying of musical recordings for noncommercial use. There's no analogous right to make complete copies of other works (except the copyright act's section 108 exemption for libraries and archives).