Finally, on why your cable internet company couldn't be sued for infringement by your customers, this is due to 17 USC 512(a) (or maybe (b) also), which reads: "A service provider shall not be liable for monetary relief, or, except as provided in sub- section (j), for injunctive or other equitable re- lief, for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections..." It goes on to provide 5 elements that have to be shown. At no point does it mention "common carriers" or anything of the like. Frankly, that section was crafted to provide ISPs safe harbor protection from "secondary liability," AKA "contributory infringement" or "vicarious infringement." It was passed as part of the DMCA. Again, it has nothing to do with common carrier status.
ISPs are not common carriers. Not under current US laws.
Per 47 USC 153 (44), any "telecommunications carrier" is a common carrier to the extent of its telecommunications services. Telecommunications services are defined under (46) as the offering of telecommunications, which is defined under (43) as the transmission of information of the user's choosing, between points specified by the user, without change in form or content of the information as sent and received. In contrast, "information services" is defined under (20) as the offering of the capability to use information "via telecommunications." Note that these definitions have been summarized by me to exclude some bits. Thus, providers of information services, unlike telecommunication carriers, are not subject to mandatory common carriage regulations (who are subject to those regulations only the extent of their telecommunications service).
The FCC decided in High-Speed Access to the Internet over Cable, Declaratory Ruling & NPRM, 17 FCC Rcd 4798 (2002) that internet access provided by cable companies was an "information service" and not a "telecommunications service." (Some of the logic here is that users' don't know exactly where they're getting or sending information from/to, and do not choose all of the information they are sending or receiving, thus internet use does not fall under the telecommunications definition. Not saying I think that's a good interpretation) Therefore, such ISPs are not subject to mandatory common carriage regulations, but may be regulated by the FCC under its ancillary powers.
The FCC has subsequently found that the provision of internet access over telephone wires (DSL) is an information service in Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, R&O and NPRM, 20 FCC Rcd 14853 (2005).
I hope this puts to rest all of the claims here on Slashdot that ISPs are Common Carriers. (yeah right).
Here's another way of looking at it. Common carriage means that the carrier must provide open service to any who ask for it at a reasonable rate (See 47 USC 201 & 202). If, for example, Comcast was a common carrier in regard to cable internet service, it would be required to permit independent cable internet service providers to directly compete with its cable internet service, using its own wires. Ditto for Verizon and DSL. I remember, a long time ago (1998, to be exact), getting cable internet from a small company in Carlisle Pennsylvania called PlanetCable. I have no idea if they still exist, but its unlikely - because they don't own the cable lines, and so their existence depends on the local cable company allowing them to use their lines. And why would a cable company permit a service to compete against it, using the cable company's own infrastructure?
Newzbin... [is] a common carrier, just like google.
I understand what you're trying to say, but "common carrier" isn't the right terminology. The term "common carrier" has an important legal meaning, on top of the general idea that it refers to a service provider that is open to the public.
Common carriers, like airlines, railroads, telephone networks, grain elevators (not kidding - in the 1800s, grain elevators were considered by the courts to be "common carriers") are business that are "affected with a public interest," and are regulated. Typically they have unusual liability standards, are forbidden from discriminating, and in return may have special privileges vis-a-vis public right of ways and eminent domain powers.
Google is not a common carrier. Neither is newzbin. ISPs aren't common carriers either - they've been desperately fighting for years to avoid being classified as common carriers, and thus become subject to the kinds of regulations that come with that title.
Let me put it this way - if Newzbin was a common carrier, then a poster on a newsgroup somewhere would be able to sue Newzbin if it didn't index that post within a reasonable amount of time. Likewise with Google - if it was a common carrier, then it would be liable to the owners of websites that it either negligently didn't index (overlooked somehow) or purposefully didn't list (like that website with photos of Michelle Obama made to look like a monkey).
It's hard to argue for privacy rights because it is a complex issue; It is difficult to come up with simple arguments, and evoke an emotional response from people. As a result, while everyone agrees privacy rights should exist, nobody can define them or present a unified front in advocating them
"Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right "to be let alone." Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops."
...
Of the desirability -- indeed of the necessity -- of some such protection, there can, it is believed, be no doubt... The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.
...
The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others. Under our system of government, he can never be compelled to express them (except when upon the witness stand); and even if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them... The right is lost only when the author himself communicates his production to the public, -- in other words, publishes it. It is entirely independent of the copyright laws, and their extension into the domain of art. The aim of those statutes is to secure to the author, composer, or artist the entire profits arising from publication; but the common-law protection enables him to control absolutely the act of publication, and in the exercise of his own discretion, to decide whether there shall be any publication at all.
...
...[t]he protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone. It is like the right not be assaulted or beaten, the right not be imprisoned, the right not to be maliciously prosecuted, the right not to be defamed. In each of these rights, as indeed in all other rights recognized by the law, there inheres the quality of being owned or possessed -- and (as that is the distinguishing attribute of property) there may some propriety in speaking of those rights as property. But, obviously, they bear little resemblance to what is ordinarily comprehended under that term. The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality."
Samuel Warren & Louis Brandeis, The Right to Privacy, 4 [Harvard Law Review] 193 (1890). Full text here.
The public pays the taxes that support all of the government necessary to enable Copyright. The public, therefore, rightfully owns those works after a limited time. By extending Copyright, they effectively robbed all of us of our rightful property.
No way.
The public doesn't own intellectual property after copyright expires on the theory that, because we fund the government that enforces (or, enables enforcement of) copyright, we get "paid back" with the rights to it once the copyright expires.
The public owns intellectual property because intellectual property isn't really property. "Intellectual property" is a legal fiction we've (the United States, at least) set up on the theory that property rights in fixed expression will encourage creativity. The fact of the matter is that once something has been expressed in a fixable way (i.e., written down, drawn, engraved, sculpted, digitalized, etc.), and it has been made available to to the public (i.e., published), anybody can come along and copy it. Normally, this sort of thing, the right to repeat something you've heard, is called freedom of speech.
The theory behind copyright is that without its protections, people won't create, and if they do, they won't release it to the public, because then anybody could copy it without paying the author.
So, yes, you should be outraged when copyright is extended, whether in duration or subject matter. But, no, not because "they've robbed us of our property." Instead, because they've magically created "property" that we're legally bound to respect. Let me put it in different terms: extensions of copyright directly limit our freedom of speech.
The compelling element is not the song but they way in which their employees are lip syncing...
Why does it matter what the "compelling element" of the video is? How does that change the fact that they're using a copyrighted work without authorization of the owner?
...I don't see how it does any damage to Capitol's property.
Why does it matter if the copyright owner's property is "damaged"? Infringement isn't stealing - damage to the owner isn't an inherent part of the offense.
What this comes down to is whether or not Vimeo can prevail on a fair use defense. But it should be noted that "fair use" doesn't matter unless there's an infringement. Trying to argue that Vimeo isn't infringing is, on these facts, a doomed task. (I'm referring to the direct infringement by their video, not secondary infringement from their hosting of other infringing videos. Secondary infringement doesn't have a fair use defense, but there is instead the safe harbor provisions in section 512.)
The real (legal) question you seem to be pushing is: should fair use be so broad as to cover incidental infringement?
But your main point, that websites like Vimeo are a legitimate threat to the content industry, cuts the wrong way on that. Why should the law consider the disruption or destruction of an industry, through what are at least technical violations of the law, "fair"?
Judges are underpaid and overworked. They have massive dockets, and are required to write out the reasons for their major decisions. They get one or two assistants (clerks). They have to sit in court and deal with all the formal shit (jury selection, jury instructions, oral arguments, etc. etc.) while they ought to be busting their ass researching the law and writing decisions.
Judges aren't paid enough. The more they're paid, the more smart lawyers who want to do good (as opposed to slowly crushing their morality while serving their clients) would be able to make the jump. A gigantic problem in the American legal system is that lawyers, especially corporate defense lawyers, are better educated, smarter, and better paid than the judges they argue in front of. Lawyers also have bigger and better staff supporting them.
There aren't enough judges. The states don't spend enough on their court systems, and state courts are notoriously slow. The federal judiciary is better off, but politics often slows down the appointment of district and appellate judges, and there are many vacant seats.
I really don't understand why the judiciary isn't a higher priority, especially for states. I can't imagine how much money is wasted due to the inefficiency and poor quality of the court system. A fast, effective court system would be a massive boost to the economy. Not to mention extraordinarily important to the basic civil rights of criminal defendants. All it needs is a higher budget priority.
Sorry, but I think your post is misleading and inaccurate.
"It's become a clear precident that the protections afforded by the First Amendment can (and are) overlooked during wartime."
This is misleading. The most important restrictions on free speech relating to national security actually came during times of peace. Scarily enough, they were related to the red scare in the 1920s (Gitlow v. People of New York) and McCarthyism in the 1950s (Dennis v. United States). Those rulings basically stand for the proposition that if the government is afraid of an ideology (i.e., communism), then its okay to punish members of groups that espouse that ideology.
"There's also the "Clear and present danger" restrictions"
This is inaccurate. Clear and present danger is short hand for the restrictions that exist on top of the national security exception talked about above. The current rule is that advocacy of unlawful activity cannot be punished "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." (Brandenburg v. Ohio)
If I say "Fuck you!" -- that's obscenity.
No, that's not obscene. Obscenity only applies to "speech" (i.e., movies and pictures and maybe books) that "depicts or describes, in a patently offensive way, sexual conduct," "appeals to the prurient interest," and "lacks serious literary, artistic, political, or scientific value." (Miller v. California)
What that could be is "fighting words," which are "Words which by their very utterance inflict injury or tend to incite an immediate breach of the peace." (Chaplinsky v. New Hampshire). But even still, the government may not ban a word or set of words based on the presumption that they're fighting words (Cohen v. California, Virginia v. Black).
"the laws covering obscenity and sex are equally obtuse, poorly-worded, and occasionally humorous."
To nitpick, laws that proscribe obscene speech must be carefully and explicitly worded, or else the courts will strike them down for vagueness or overbreadth. On the other hand, the rules the Supreme Court has made as to how to determine whether certain speech is obscene and thus can be banned by a carefully constructed law are obtuse and poorly worded.
"Slander and Libel. I say you're a child molester. You say "bullshit!" I can't prove it. I'm not protected because I made a false statement about your character"
This stuff gets complicated. Depending on who you are and I am, potentially there's no free speech / first amendment issue here at all. If you post on your blog that I'm a child molester, and I'm not a "public figure" or somehow involved in a public issue of some kind - then I can sue you for defamation, and only have to show that the statement is false and you were negligent in publishing it. If I'm a public figure, then I have to show "actual malice," which basically means that I have to prove that you actually knew the statement was false, or had serious doubts that it was true and published it anyway.
And the list goes on.
It does. We haven't covered true threats, commercial speech, symbolic speech, speech by public employees, content based discrimination, viewpoint based discrimination, time place and manner regulations, the secondary effects doctrine, public forums etc.
Section 203(a) clearly states: "...the exclusive or nonexclusive grant... executed by the author... is subject to termination..."
The Copyright Act clearly distinguishes between the "owner" of a copyright and the "author" of a work. The Guitar Hero licenses were made by the owner of the copyright, the publisher, not the author of the work, the Eagles. Hence, no termination, now or ever.
Could this be used to require guitar hero, etc. to stop distribution of current versions...?
This is a great question.
Here's the law (Title 17, Section 203):
(a) Conditions for Termination.—In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions: ---blah blah blah--- (b) Effect of Termination.—Upon the effective date of termination, all rights under this title that were covered by the terminated grants revert to the author, authors... etc etc... but with the following limitations: (1) A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant. ---blah blah blah (read it yourself if you want to see the rest)---
The key question would be - is Guitar Hero a derivative work?
Section 101 defines derivative work:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.
I don't know. Seems like it could go either way. Certainly, the early Guitar Heroes that used covered versions of the song wouldn't be affected - those are clearly derivative works of the original song. But what about Guitar Heroes that use the original recordings? Maybe, since whether the whole song plays is dependent on what the player does, it's a derivative work. It's been "adapted," arguably... but do those transformations "as a whole, represent an original work of authorship"? probably not.
I would actually lean towards the answer: Guitar Hero is vulnerable to having its license terminated. I don't think the Eagles could do that until 35 years after the contract was signed by their publisher, though. As others have indicated, transfer of ownership of a copyright wouldn't affect existing licenses.
What matters is the actual information bandwidth, and that's much wider for written text than for speech. We can read much faster than we can talk, and when you have text on the screen, you can skim around freely.
That may be true, but audio wins in two contexts:
Audio has much better upload bandwidth. It's a lot easier to talk about whats on your mind than to compose a written piece.
Audio is better for multitasking. You can read and walk at the same time, but its much easier to listen and walk. You can't read and run at the same time, but you can listen and run. You can also listen and drive. On the other hand, its hard to both listen and read, or listen while thinking about something other than what you're listening to. But then, its hard to read two different things at the same time, or read while thinking about something other than what you're reading.
Google doesn't get exclusive rights. Read section 2.4 of the settlement agreement:
Non-Exclusivity of Authorizations. The authorizations granted to Google in this Settlement Agreement are non-exclusive only, and nothing in this Settlement Agreement shall be construed as limiting any Rightsholder's right to authorize, through the Registry or otherwise, any Person, including direct competitors of Google, to use his, her or its Books or Inserts in any way, including ways identical to those provided for under this Settlement Agreement.
Competitors would have to make their own deal with the rightholders - so, they wouldn't necessarily get the same terms - but that's normal business practice. You gotta negotiate your own contract, not piggyback on a competitor's.
Fair use is a fact-intensive policy consideration. There are no absolute rules. You can point to various set of recommendations ("not more than 10%," etc. etc.), but those are guidelines or recommendations, not the law.
Whether or not the unlicensed use of a copyrighted work is fair use depends in every case on the facts of the case. It also depends on the policy considerations at stake.
There are four main factors (not "rules") that courts are required to consider when they evaluate a fair use defense, as spelled out in Â107 of the Copyright Act. They are (this isn't strictly quoting the act): - the nature of the use, especially whether it is commercial, nonprofit, or educational - the nature of the original copyrighted work - the proportion of original work used - the effect of use on the market/value for the original work. BUT, while the courts are required, to consider these factors, they do not have to give them equal weight (and, they can consider other factors as well). It depends on the situation. A critical analysis of a copyrighted Haiku or other short poem could probably reproduce the whole poem. "Probably." That wouldn't be true if the critical analysis was an advertisement. Unless maybe if it was an advertisement for an academic literary journal published by a university.
The virtue of fair use is that it appeals to what is fair, not what is technical. But if you want to get technical, fair use is an equitable defense - in other words, an issue of equity, not of law. Look it up. That's why fair use is ambiguous. It's meant to be adapted to each situation as necessary. As for your point about needing a lawyer - tough shit. That's true of nearly every legal issue outside of small claims court. Your issue isn't with the complexity of fair use, your issue is with the fact that copyright infringement makes you liable for a civil lawsuit, not a criminal one, so you don't get a public defender/free lawyer.
How do you explain fair use to children? "Fair use" means you can use copyrighted works in ways that are "fair," whether or not you have permission. What fair means is up to the courts. You can then cite examples.
That doesn't fully explain the law, but thats not the point when trying to educate children about legal issues. It'd be pretty damn easy for the RIAA to say "you can do what's fair." Or, more accurately, "We'll won't sue you if you're fair with your use of our songs." Or, more accurately still, "We'll probably lose if we sue you for fair uses of our songs in ways we don't give you permission to do."
How are they going to use this for protecting crops? If ants are repelled, wasps and bees will be, too, and there goes your pollination.
Corn is pollinated by wind. I'm not going to bother to find sources for each kind of corn, but here's links for maize (American corn), wheat (European corn), and barley barley. (I guess that link only indicates that Barley self-pollinates, not pollinates by wind. whatever.) Rice is also wind-pollinated.
Therefore, if a product is developed from cockroach juice, it might be most useful for these kinds of crops. Note that "cereals" and "roots and tubers" are the 1st and 3rd most produced type of crop.
What about option three? People stop designing cars, watches, etc, because once they sell one, anyone with the "replicator" can get theirs without the original designer being paid?
Repeat after me: the market is not the only way to promote the creation and distribution of valuable goods.
Trying to sell bits is stupid, but not quite as stupid as trying to keep people from copying them. Bits are like air -- to sell air you have to wrap a balloon or a scuba tank around it. The people selling "digital content" need to learn to do the same. Don't sell movies, sell DVDs. People LIKE tangible objects.
I agree with this sentiment wholeheartedly. Digital information, because there's very nearly zero duplication cost, shouldn't be treated like property. It shouldn't be commodified. You can try to, with a legal regime that treats it like property, and with technical obstructions like the subject of this story, but that destroys the most valuable aspect of digital information. The "free" duplication of digital information has such incredible potential if relieved of the burden of treating it like physical property, and we instead embrace its inherent nature.
Society would be bettered by not treating digital information as marketable property.
On the other hand, trying to sell bits isn't stupid. There are other ways to sell digital information than the commodities market system. With contractual relationships, for example. Providers of information (on my mind is gigantic databases that provide useful services, like Lexis Nexis) can create lucrative contractual arrangements with people who need that information. A provision of that contract can be "no copying." The prohibition against copying would be part of the contract, though, and not due to the nature of the data itself. Furthermore, both sides of the contract would be able to tailor fair-use-like exceptions as necessary for the situation. Violations can be treated like any other breach of contract, and fits well in our existing court system. In this way, useful, valuable accumulation and distribution of data can be incentivized.
Although software and other forms of digital information are sold with licenses (EULAs), these are really just hacks to try to extend some kind of contractual obligations on what is really a commodity system.
Caveats - I do think there ought to be some rights on digital information - the authors right not have it distributed at all (i.e., private data, like my personal photos), for example, or right to be credited. But these rights aren't based on ownership and facilitating market exchange, as in property rights, but on privacy and "moral" rights, which are for protecting the individual.
Take a look at the Copyright Act of 1976. You'll be astonished to discover that: -it starts with definitions -then it describes the scope and subject matter of copyright -next, limitations on that scope/subject matter -various features of ownership of copyright (trsanfer, duration, notice, etc.) -infringement and penalties -administration -specific provisions for specific situations
In other words, it proceeds in the orderly way you think legislation ought to. The same is true for many pieces of legislation, although this is less true in the US* than in most places around the world**. You should try actually reading a title in the US code sometime - not a bill (as the author of this article did) or statute, which are very different things from the "compiled" law of the US code.
*The United States, along with the UK, Australia, etc. (Common law countries), tends to have a haphazardly organized set of statutes - Largely because (I would argue; certainly there are other explanations) judges develop most law. They work the kinks out of newly passed statutes, adapt the law to new situations, develop working rules or guidelines for how the law ought to be applied, and judges have a strong dominion over the traditional, doctrinal areas of "private" law - contracts, torts, property, etc. The legislature often works with (or against) the judiciary when it develops law - frequently incorporating judge-made law as the foundation for a new statute, or, enacting statutes to overturn judge-made law it doesn't like. Thus, our "activist" judiciary (which can made binding law all on its own) leads to the legislature enacting piecemeal statutes.
**Most other nations have a "civil law" system which (this is a broad, oversimplification) precludes judge-made law. The legislature does more than enact piecemeal statutes; they adopt "codes," which are, or ought to be, large, comprehensive, all-encompassing embodiments of the law of a general topic (like criminal law). You would like these. They're supposed to be methodologically designed, with an internal logical structure. Incidentally, law services in civil-law countries are a lot cheaper than in the US.
...academics love getting their panties in a bunch over...
It doesn't matter how you end that statement. It's true. But, that's their job - academics overthink and overanalyze everything they can.
...over what is Scholarly Publication and what is not.
There's a very good reason for that. Scholarship involves putting your reputation on the line. "Scholarly" works are those in which the author says: "This is a contribution to human knowledge and understanding of the world around us." In contrast, popular literature is produced for a very different reason - to make money, or because the author is passionate about the subject, or for fun (and, in all cases of course, that work is published by a publisher to make money).
There's a big difference there, when you're using a work as source material for your own scholarly work. You want to rely on people who are staking their own reputations (and usually, professional/academic careers) on the validity of their work.
...it seems antiquated in light of the ease with which we can independently verify claims.
How do you independently verify a comparative analysis of two different research methods? or an attempt to harmonize two competing theories in a certain field of study? Or even just the simple application of an established theory to a certain set of facts?
You can verify the facts (maybe, if you know where to look), and you can verify the theory is as they say it is (if you have the foundation to understand it), but you can't verify their analysis. The strength of that analysis may be self-evident, or it may rely on the author's reputation.
...I spent a lot of time reading this crap, and very little of it was as insightful or interesting as even my classmates' comments.
No shit! You were studying humanities. You shoulda studied a social science if you were looking for insightful or interesting academic work. Woulda prepped you better for law school too.
I'll grant you that it's probably less than a majority who value their privacy prospectively.
But privacy is one of those things where it suddenly becomes a lot more valuable after it's been violated.
The right of privacy shouldn't be likened to a market exchange - where you can "trade away" your privacy in exchange for something - because the fairness of exchanges comes from each party fully knowing the value of what they're giving away. Most people have no idea what their privacy is worth until it's been violated.
The complaint, though, is that Google alone will have access to in-copyright but unknown-author books, as part of the terms of the settlement. It's a weird sort of legal loophole in that nobody normally would have access, but if Google successfully settles a class-action lawsuit, then the class representatives can give Google permission on behalf of the class members. The only way for anyone else to get similar permission would be to either contact these unknown authors individually, or find a way to get a class-action lawsuit filed against them that would enable them to negotiate a similar settlement.
So the only way to compete in this "market" is to do the same thing that Google did to get into the "market"?
Sounds to me like if a bunch of companies who make gadget X got together (ie, colluded) to stop some other company from building a factory that makes widget Y, because widget Y might cut into gadget X's market-space. If gadget X makers want to control the market, they gotta build factories to make widget Y.
Slashdot Mirror
Here's a bit of follow up with more resources.
These links contain the following documents in pdf format:
High-Speed Access to the Internet over Cable, Declaratory Ruling & NPRM, 17 FCC Rcd 4798 (2002).
Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, R&O and NPRM, 20 FCC Rcd 14853 (2005)
Finally, on why your cable internet company couldn't be sued for infringement by your customers, this is due to 17 USC 512(a) (or maybe (b) also), which reads: "A service provider shall not be liable for monetary relief, or, except as provided in sub- section (j), for injunctive or other equitable re- lief, for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections..." It goes on to provide 5 elements that have to be shown. At no point does it mention "common carriers" or anything of the like. Frankly, that section was crafted to provide ISPs safe harbor protection from "secondary liability," AKA "contributory infringement" or "vicarious infringement." It was passed as part of the DMCA. Again, it has nothing to do with common carrier status.
You can find 17 USC 512 here.
ISPs are not common carriers. Not under current US laws.
Per 47 USC 153 (44), any "telecommunications carrier" is a common carrier to the extent of its telecommunications services. Telecommunications services are defined under (46) as the offering of telecommunications, which is defined under (43) as the transmission of information of the user's choosing, between points specified by the user, without change in form or content of the information as sent and received. In contrast, "information services" is defined under (20) as the offering of the capability to use information "via telecommunications." Note that these definitions have been summarized by me to exclude some bits. Thus, providers of information services, unlike telecommunication carriers, are not subject to mandatory common carriage regulations (who are subject to those regulations only the extent of their telecommunications service).
The FCC decided in High-Speed Access to the Internet over Cable, Declaratory Ruling & NPRM, 17 FCC Rcd 4798 (2002) that internet access provided by cable companies was an "information service" and not a "telecommunications service." (Some of the logic here is that users' don't know exactly where they're getting or sending information from/to, and do not choose all of the information they are sending or receiving, thus internet use does not fall under the telecommunications definition. Not saying I think that's a good interpretation) Therefore, such ISPs are not subject to mandatory common carriage regulations, but may be regulated by the FCC under its ancillary powers.
The United States Supreme Court upheld the FCC's interpretation in National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005).
The FCC has subsequently found that the provision of internet access over telephone wires (DSL) is an information service in Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, R&O and NPRM, 20 FCC Rcd 14853 (2005).
I hope this puts to rest all of the claims here on Slashdot that ISPs are Common Carriers. (yeah right).
Here's another way of looking at it. Common carriage means that the carrier must provide open service to any who ask for it at a reasonable rate (See 47 USC 201 & 202). If, for example, Comcast was a common carrier in regard to cable internet service, it would be required to permit independent cable internet service providers to directly compete with its cable internet service, using its own wires. Ditto for Verizon and DSL. I remember, a long time ago (1998, to be exact), getting cable internet from a small company in Carlisle Pennsylvania called PlanetCable. I have no idea if they still exist, but its unlikely - because they don't own the cable lines, and so their existence depends on the local cable company allowing them to use their lines. And why would a cable company permit a service to compete against it, using the cable company's own infrastructure?
Newzbin... [is] a common carrier, just like google.
I understand what you're trying to say, but "common carrier" isn't the right terminology. The term "common carrier" has an important legal meaning, on top of the general idea that it refers to a service provider that is open to the public.
Common carriers, like airlines, railroads, telephone networks, grain elevators (not kidding - in the 1800s, grain elevators were considered by the courts to be "common carriers") are business that are "affected with a public interest," and are regulated. Typically they have unusual liability standards, are forbidden from discriminating, and in return may have special privileges vis-a-vis public right of ways and eminent domain powers.
Google is not a common carrier. Neither is newzbin. ISPs aren't common carriers either - they've been desperately fighting for years to avoid being classified as common carriers, and thus become subject to the kinds of regulations that come with that title.
Let me put it this way - if Newzbin was a common carrier, then a poster on a newsgroup somewhere would be able to sue Newzbin if it didn't index that post within a reasonable amount of time. Likewise with Google - if it was a common carrier, then it would be liable to the owners of websites that it either negligently didn't index (overlooked somehow) or purposefully didn't list (like that website with photos of Michelle Obama made to look like a monkey).
We should have spent the 60's on healthcare reform...
Sorry, we didn't "spend" the 60's on going to the moon. That was a fun sideshow.
We "spent" the 60's fighting for civil rights.
Where's the "correlation is not causation" tag?
It's hard to argue for privacy rights because it is a complex issue; It is difficult to come up with simple arguments, and evoke an emotional response from people. As a result, while everyone agrees privacy rights should exist, nobody can define them or present a unified front in advocating them
"Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right "to be let alone." Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops."
Of the desirability -- indeed of the necessity -- of some such protection, there can, it is believed, be no doubt... The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.
The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others. Under our system of government, he can never be compelled to express them (except when upon the witness stand); and even if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them... The right is lost only when the author himself communicates his production to the public, -- in other words, publishes it. It is entirely independent of the copyright laws, and their extension into the domain of art. The aim of those statutes is to secure to the author, composer, or artist the entire profits arising from publication; but the common-law protection enables him to control absolutely the act of publication, and in the exercise of his own discretion, to decide whether there shall be any publication at all.
Samuel Warren & Louis Brandeis, The Right to Privacy, 4 [Harvard Law Review] 193 (1890).
Full text here.
It isn't ad-hominem if it's true.
Yes it is.
The public pays the taxes that support all of the government necessary to enable Copyright. The public, therefore, rightfully owns those works after a limited time. By extending Copyright, they effectively robbed all of us of our rightful property.
No way.
The public doesn't own intellectual property after copyright expires on the theory that, because we fund the government that enforces (or, enables enforcement of) copyright, we get "paid back" with the rights to it once the copyright expires.
The public owns intellectual property because intellectual property isn't really property. "Intellectual property" is a legal fiction we've (the United States, at least) set up on the theory that property rights in fixed expression will encourage creativity. The fact of the matter is that once something has been expressed in a fixable way (i.e., written down, drawn, engraved, sculpted, digitalized, etc.), and it has been made available to to the public (i.e., published), anybody can come along and copy it. Normally, this sort of thing, the right to repeat something you've heard, is called freedom of speech.
The theory behind copyright is that without its protections, people won't create, and if they do, they won't release it to the public, because then anybody could copy it without paying the author.
So, yes, you should be outraged when copyright is extended, whether in duration or subject matter. But, no, not because "they've robbed us of our property." Instead, because they've magically created "property" that we're legally bound to respect. Let me put it in different terms: extensions of copyright directly limit our freedom of speech.
The compelling element is not the song but they way in which their employees are lip syncing...
Why does it matter what the "compelling element" of the video is? How does that change the fact that they're using a copyrighted work without authorization of the owner?
...I don't see how it does any damage to Capitol's property.
Why does it matter if the copyright owner's property is "damaged"? Infringement isn't stealing - damage to the owner isn't an inherent part of the offense.
What this comes down to is whether or not Vimeo can prevail on a fair use defense. But it should be noted that "fair use" doesn't matter unless there's an infringement. Trying to argue that Vimeo isn't infringing is, on these facts, a doomed task. (I'm referring to the direct infringement by their video, not secondary infringement from their hosting of other infringing videos. Secondary infringement doesn't have a fair use defense, but there is instead the safe harbor provisions in section 512.)
The real (legal) question you seem to be pushing is: should fair use be so broad as to cover incidental infringement?
But your main point, that websites like Vimeo are a legitimate threat to the content industry, cuts the wrong way on that. Why should the law consider the disruption or destruction of an industry, through what are at least technical violations of the law, "fair"?
Judges are underpaid and overworked. They have massive dockets, and are required to write out the reasons for their major decisions. They get one or two assistants (clerks). They have to sit in court and deal with all the formal shit (jury selection, jury instructions, oral arguments, etc. etc.) while they ought to be busting their ass researching the law and writing decisions.
Judges aren't paid enough. The more they're paid, the more smart lawyers who want to do good (as opposed to slowly crushing their morality while serving their clients) would be able to make the jump. A gigantic problem in the American legal system is that lawyers, especially corporate defense lawyers, are better educated, smarter, and better paid than the judges they argue in front of. Lawyers also have bigger and better staff supporting them.
There aren't enough judges. The states don't spend enough on their court systems, and state courts are notoriously slow. The federal judiciary is better off, but politics often slows down the appointment of district and appellate judges, and there are many vacant seats.
I really don't understand why the judiciary isn't a higher priority, especially for states. I can't imagine how much money is wasted due to the inefficiency and poor quality of the court system. A fast, effective court system would be a massive boost to the economy. Not to mention extraordinarily important to the basic civil rights of criminal defendants. All it needs is a higher budget priority.
Sorry, but I think your post is misleading and inaccurate.
"It's become a clear precident that the protections afforded by the First Amendment can (and are) overlooked during wartime."
This is misleading. The most important restrictions on free speech relating to national security actually came during times of peace. Scarily enough, they were related to the red scare in the 1920s (Gitlow v. People of New York) and McCarthyism in the 1950s (Dennis v. United States). Those rulings basically stand for the proposition that if the government is afraid of an ideology (i.e., communism), then its okay to punish members of groups that espouse that ideology.
"There's also the "Clear and present danger" restrictions"
This is inaccurate. Clear and present danger is short hand for the restrictions that exist on top of the national security exception talked about above. The current rule is that advocacy of unlawful activity cannot be punished "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." (Brandenburg v. Ohio)
If I say "Fuck you!" -- that's obscenity.
No, that's not obscene. Obscenity only applies to "speech" (i.e., movies and pictures and maybe books) that "depicts or describes, in a patently offensive way, sexual conduct," "appeals to the prurient interest," and "lacks serious literary, artistic, political, or scientific value." (Miller v. California)
What that could be is "fighting words," which are "Words which by their very utterance inflict injury or tend to incite an immediate breach of the peace." (Chaplinsky v. New Hampshire). But even still, the government may not ban a word or set of words based on the presumption that they're fighting words (Cohen v. California, Virginia v. Black).
"the laws covering obscenity and sex are equally obtuse, poorly-worded, and occasionally humorous."
To nitpick, laws that proscribe obscene speech must be carefully and explicitly worded, or else the courts will strike them down for vagueness or overbreadth. On the other hand, the rules the Supreme Court has made as to how to determine whether certain speech is obscene and thus can be banned by a carefully constructed law are obtuse and poorly worded.
"Slander and Libel. I say you're a child molester. You say "bullshit!" I can't prove it. I'm not protected because I made a false statement about your character"
This stuff gets complicated. Depending on who you are and I am, potentially there's no free speech / first amendment issue here at all. If you post on your blog that I'm a child molester, and I'm not a "public figure" or somehow involved in a public issue of some kind - then I can sue you for defamation, and only have to show that the statement is false and you were negligent in publishing it. If I'm a public figure, then I have to show "actual malice," which basically means that I have to prove that you actually knew the statement was false, or had serious doubts that it was true and published it anyway.
And the list goes on.
It does. We haven't covered true threats, commercial speech, symbolic speech, speech by public employees, content based discrimination, viewpoint based discrimination, time place and manner regulations, the secondary effects doctrine, public forums etc.
Whoops, I take it all back.
Section 203(a) clearly states: "...the exclusive or nonexclusive grant... executed by the author... is subject to termination..."
The Copyright Act clearly distinguishes between the "owner" of a copyright and the "author" of a work. The Guitar Hero licenses were made by the owner of the copyright, the publisher, not the author of the work, the Eagles. Hence, no termination, now or ever.
Could this be used to require guitar hero, etc. to stop distribution of current versions...?
This is a great question.
Here's the law (Title 17, Section 203):
(a) Conditions for Termination.—In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions:
---blah blah blah---
(b) Effect of Termination.—Upon the effective date of termination, all rights under this title that were covered by the terminated grants revert to the author, authors... etc etc... but with the following limitations:
(1) A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant.
---blah blah blah (read it yourself if you want to see the rest)---
The key question would be - is Guitar Hero a derivative work?
Section 101 defines derivative work:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.
I don't know. Seems like it could go either way. Certainly, the early Guitar Heroes that used covered versions of the song wouldn't be affected - those are clearly derivative works of the original song. But what about Guitar Heroes that use the original recordings? Maybe, since whether the whole song plays is dependent on what the player does, it's a derivative work. It's been "adapted," arguably... but do those transformations "as a whole, represent an original work of authorship"? probably not.
I would actually lean towards the answer: Guitar Hero is vulnerable to having its license terminated. I don't think the Eagles could do that until 35 years after the contract was signed by their publisher, though. As others have indicated, transfer of ownership of a copyright wouldn't affect existing licenses.
While you're guessing with such precision, why not choose 42% and grab more nerd eyes?
Because pirating software is not the answer to life the universe and everything.
No no no no no.
42 is the answer.
Pirating software is the question.
socialism doesn't "solve" problems.
Unless that problem is "healthcare is too expensive for both individuals and the government."
What matters is the actual information bandwidth, and that's much wider for written text than for speech. We can read much faster than we can talk, and when you have text on the screen, you can skim around freely.
That may be true, but audio wins in two contexts:
Audio has much better upload bandwidth. It's a lot easier to talk about whats on your mind than to compose a written piece.
Audio is better for multitasking. You can read and walk at the same time, but its much easier to listen and walk. You can't read and run at the same time, but you can listen and run. You can also listen and drive. On the other hand, its hard to both listen and read, or listen while thinking about something other than what you're listening to. But then, its hard to read two different things at the same time, or read while thinking about something other than what you're reading.
Google doesn't get exclusive rights. Read section 2.4 of the settlement agreement:
Non-Exclusivity of Authorizations. The authorizations granted to Google in this Settlement Agreement are non-exclusive only, and nothing in this Settlement Agreement shall be construed as limiting any Rightsholder's right to authorize, through the Registry or otherwise, any Person, including direct competitors of Google, to use his, her or its Books or Inserts in any way, including ways identical to those provided for under this Settlement Agreement.
Competitors would have to make their own deal with the rightholders - so, they wouldn't necessarily get the same terms - but that's normal business practice. You gotta negotiate your own contract, not piggyback on a competitor's.
Fair use is a fact-intensive policy consideration. There are no absolute rules. You can point to various set of recommendations ("not more than 10%," etc. etc.), but those are guidelines or recommendations, not the law.
Whether or not the unlicensed use of a copyrighted work is fair use depends in every case on the facts of the case. It also depends on the policy considerations at stake.
There are four main factors (not "rules") that courts are required to consider when they evaluate a fair use defense, as spelled out in Â107 of the Copyright Act. They are (this isn't strictly quoting the act):
- the nature of the use, especially whether it is commercial, nonprofit, or educational
- the nature of the original copyrighted work
- the proportion of original work used
- the effect of use on the market/value for the original work.
BUT, while the courts are required, to consider these factors, they do not have to give them equal weight (and, they can consider other factors as well). It depends on the situation. A critical analysis of a copyrighted Haiku or other short poem could probably reproduce the whole poem. "Probably." That wouldn't be true if the critical analysis was an advertisement. Unless maybe if it was an advertisement for an academic literary journal published by a university.
The virtue of fair use is that it appeals to what is fair, not what is technical. But if you want to get technical, fair use is an equitable defense - in other words, an issue of equity, not of law. Look it up. That's why fair use is ambiguous. It's meant to be adapted to each situation as necessary. As for your point about needing a lawyer - tough shit. That's true of nearly every legal issue outside of small claims court. Your issue isn't with the complexity of fair use, your issue is with the fact that copyright infringement makes you liable for a civil lawsuit, not a criminal one, so you don't get a public defender/free lawyer.
How do you explain fair use to children? "Fair use" means you can use copyrighted works in ways that are "fair," whether or not you have permission. What fair means is up to the courts. You can then cite examples.
That doesn't fully explain the law, but thats not the point when trying to educate children about legal issues. It'd be pretty damn easy for the RIAA to say "you can do what's fair." Or, more accurately, "We'll won't sue you if you're fair with your use of our songs." Or, more accurately still, "We'll probably lose if we sue you for fair uses of our songs in ways we don't give you permission to do."
How are they going to use this for protecting crops? If ants are repelled, wasps and bees will be, too, and there goes your pollination.
Corn is pollinated by wind. I'm not going to bother to find sources for each kind of corn, but here's links for maize (American corn), wheat (European corn), and barley barley. (I guess that link only indicates that Barley self-pollinates, not pollinates by wind. whatever.) Rice is also wind-pollinated.
Potatoes don't need to be pollinated at all.
Therefore, if a product is developed from cockroach juice, it might be most useful for these kinds of crops. Note that "cereals" and "roots and tubers" are the 1st and 3rd most produced type of crop.
What about option three? People stop designing cars, watches, etc, because once they sell one, anyone with the "replicator" can get theirs without the original designer being paid?
Repeat after me: the market is not the only way to promote the creation and distribution of valuable goods.
Trying to sell bits is stupid, but not quite as stupid as trying to keep people from copying them. Bits are like air -- to sell air you have to wrap a balloon or a scuba tank around it. The people selling "digital content" need to learn to do the same. Don't sell movies, sell DVDs. People LIKE tangible objects.
I agree with this sentiment wholeheartedly. Digital information, because there's very nearly zero duplication cost, shouldn't be treated like property. It shouldn't be commodified. You can try to, with a legal regime that treats it like property, and with technical obstructions like the subject of this story, but that destroys the most valuable aspect of digital information. The "free" duplication of digital information has such incredible potential if relieved of the burden of treating it like physical property, and we instead embrace its inherent nature.
Society would be bettered by not treating digital information as marketable property.
On the other hand, trying to sell bits isn't stupid. There are other ways to sell digital information than the commodities market system. With contractual relationships, for example. Providers of information (on my mind is gigantic databases that provide useful services, like Lexis Nexis) can create lucrative contractual arrangements with people who need that information. A provision of that contract can be "no copying." The prohibition against copying would be part of the contract, though, and not due to the nature of the data itself. Furthermore, both sides of the contract would be able to tailor fair-use-like exceptions as necessary for the situation. Violations can be treated like any other breach of contract, and fits well in our existing court system. In this way, useful, valuable accumulation and distribution of data can be incentivized.
Although software and other forms of digital information are sold with licenses (EULAs), these are really just hacks to try to extend some kind of contractual obligations on what is really a commodity system.
Caveats - I do think there ought to be some rights on digital information - the authors right not have it distributed at all (i.e., private data, like my personal photos), for example, or right to be credited. But these rights aren't based on ownership and facilitating market exchange, as in property rights, but on privacy and "moral" rights, which are for protecting the individual.
Take a look at the Copyright Act of 1976. You'll be astonished to discover that:
-it starts with definitions
-then it describes the scope and subject matter of copyright
-next, limitations on that scope/subject matter
-various features of ownership of copyright (trsanfer, duration, notice, etc.)
-infringement and penalties
-administration
-specific provisions for specific situations
In other words, it proceeds in the orderly way you think legislation ought to. The same is true for many pieces of legislation, although this is less true in the US* than in most places around the world**. You should try actually reading a title in the US code sometime - not a bill (as the author of this article did) or statute, which are very different things from the "compiled" law of the US code.
*The United States, along with the UK, Australia, etc. (Common law countries), tends to have a haphazardly organized set of statutes - Largely because (I would argue; certainly there are other explanations) judges develop most law. They work the kinks out of newly passed statutes, adapt the law to new situations, develop working rules or guidelines for how the law ought to be applied, and judges have a strong dominion over the traditional, doctrinal areas of "private" law - contracts, torts, property, etc. The legislature often works with (or against) the judiciary when it develops law - frequently incorporating judge-made law as the foundation for a new statute, or, enacting statutes to overturn judge-made law it doesn't like. Thus, our "activist" judiciary (which can made binding law all on its own) leads to the legislature enacting piecemeal statutes.
**Most other nations have a "civil law" system which (this is a broad, oversimplification) precludes judge-made law. The legislature does more than enact piecemeal statutes; they adopt "codes," which are, or ought to be, large, comprehensive, all-encompassing embodiments of the law of a general topic (like criminal law). You would like these. They're supposed to be methodologically designed, with an internal logical structure. Incidentally, law services in civil-law countries are a lot cheaper than in the US.
...academics love getting their panties in a bunch over...
It doesn't matter how you end that statement. It's true. But, that's their job - academics overthink and overanalyze everything they can.
There's a very good reason for that. Scholarship involves putting your reputation on the line. "Scholarly" works are those in which the author says: "This is a contribution to human knowledge and understanding of the world around us." In contrast, popular literature is produced for a very different reason - to make money, or because the author is passionate about the subject, or for fun (and, in all cases of course, that work is published by a publisher to make money).
There's a big difference there, when you're using a work as source material for your own scholarly work. You want to rely on people who are staking their own reputations (and usually, professional/academic careers) on the validity of their work.
How do you independently verify a comparative analysis of two different research methods? or an attempt to harmonize two competing theories in a certain field of study? Or even just the simple application of an established theory to a certain set of facts?
You can verify the facts (maybe, if you know where to look), and you can verify the theory is as they say it is (if you have the foundation to understand it), but you can't verify their analysis. The strength of that analysis may be self-evident, or it may rely on the author's reputation.
No shit! You were studying humanities. You shoulda studied a social science if you were looking for insightful or interesting academic work. Woulda prepped you better for law school too.
I'll grant you that it's probably less than a majority who value their privacy prospectively.
But privacy is one of those things where it suddenly becomes a lot more valuable after it's been violated.
The right of privacy shouldn't be likened to a market exchange - where you can "trade away" your privacy in exchange for something - because the fairness of exchanges comes from each party fully knowing the value of what they're giving away. Most people have no idea what their privacy is worth until it's been violated.
The complaint, though, is that Google alone will have access to in-copyright but unknown-author books, as part of the terms of the settlement. It's a weird sort of legal loophole in that nobody normally would have access, but if Google successfully settles a class-action lawsuit, then the class representatives can give Google permission on behalf of the class members. The only way for anyone else to get similar permission would be to either contact these unknown authors individually, or find a way to get a class-action lawsuit filed against them that would enable them to negotiate a similar settlement.
So the only way to compete in this "market" is to do the same thing that Google did to get into the "market"?
Sounds to me like if a bunch of companies who make gadget X got together (ie, colluded) to stop some other company from building a factory that makes widget Y, because widget Y might cut into gadget X's market-space. If gadget X makers want to control the market, they gotta build factories to make widget Y.