Provide sufficient grants (not loans) to allow anyone regardless of income level to afford a BS/BA. Do this while increasing tuition rates to compensate. Alternatively, one could raise upper bracket income tax rates to compensate.
After all, the most rich (such as Bill Gates, etc) get rich partly based on the work of the educated today. Why not ask them to pay for part of that investment. Seems fair to me. Heck, as my business grows, I might have to be part of such a solution (our real limit at the moment is finding people who are knowledgable and qualified for certain types of systems).
However, I do not think that this should be conditional nor should humanities be discriminated against. We need engineers and scientists, but we also need philosophers, historians, and other people who can help view and address the complex issues which arise in social systems. Having people who can advance the teaching of arts and music also helps all of us by providing a more enjoyable society (my sister is finishing up her Doctorate of Musical Arts and is nearly $100000 in debt-- I don';t see how this is sustainable as tuition rates keep going up).
I suggest that you remember Who it is that gives you the freedom you enjoy. It is someone bigger than we are. How right you are. We should aways remember the divine gifts granted to us by Odin, Hoenir, and Lothur!
Really? You mean that all those studies that show that children of wife beaters are more likely to grow up to be wife beaters were wrong? Ok. Let me get this right. You are suggesting seriously that if someone watches their primary role models being violent to eachohter this is going to have the same effect as playing a video game?
Well, I have some land in Nebraska I would like to sell you. Ocean view and the whole nine yards. Please pay in small unmarked bills....
Why is it the government's job to make sure that kids are not harming their bodies? If a parent wants to buy smokes for their kids, that's their choice. I think it is a wrong choice, but that's for them to decide on their own. How's this: If an adult has the right to purchase cigarettes, or alcohol, or dirty magazines or whatever, why not children? Answer that and apply that answer to violent video games. I don't believe that it is the government's job to keep kids from harming their bodies. If it was, we should outlaw selling junk food to minors... "No, you may not buy that candy bar, but I can sell you some carrots...."
I would draw the line with tobacco however. The reason is not just that it is physically harmful but tht it is also quite strongly emotionally and physically addictive. It is thus ok with me to make it a little harder to start a habit which is likely to be a large struggle possibly for the rest of an individual's life (I do know smokers who go through quitting/relapsing cycles).
As for alcohol, I think we would be better off to make the legal drinking age a bit lower than the legal driving age, and do what we can to encourage responsible alcohol use by teenagers.
As for dirty magazines... I also think it would be better public policy to encourage worrying about this less. However, the fact remains that this is a sore subject for a lot of people and hence... anyway, it is not as if a teenager who tries to find porn on the internet can't. Why discriminate on the basis of media?
Also which is more dangerous to a child's development? Suppose the child is able to buy a dirty magazine....
Or suppose that a child swipes his parents' credit card and purchases a subscription to a porn site. His mother finds out about it, the marriage was already under strain and it is the final straw. Now the child has seen not only the nude or possible sexually explicit images, but also is going to feel *directly* responsible for his parents' divorce.
I wouldn't have a problem with that, but I think such a law would be an extreme over reaction. But you are arguing the opposite, that it is OK for children to buy anything they want, with or without their parents' permission. True. But I think we should be careful about restricting sales of things to minors on the mere supposition that it might possibly be bad for them. Heck, we *know* candy bars are bad for kids.
There is no Constitutional right to bad parenting! And yet you go on to suggest that you are not infringing on such a right. Arguably to a point, I would argue that the 4th Amendment's Liberty Guarantee would imply a limited right (i.e. that one has the right to raise kids as one sees fit). This would not extend to exploiting, willfully injuring, or neglecting children, but it would prevent the parent from allowing his/her child to consume alcoholic beverages during a religious ceremony such as Communion for Christians of the Sumbel for us Norse Pagans.
Earlier you had said:
I'm sorry, but I don't see how these laws are unconstitutional. If the intent of the law is to punnish video game makers with fewer sales for making violent video games would this be a violation of the right to free speech? What if the law were stronger to more or less ensure that such game vendors could not make back their original R&D costs?
I would argue that the nature of the law is usually aimed at removing violent games from the public to the greatest extent possible and therefore are unconstitutional.
Some parents give their child birthday money or allowance or whatever and let them buy whatever they want. And maybe forbidding the child from buying the video game is the wrong approach. If my son was older (say, 7) and managed to get ahold of GTA3, what should my response be?
I can tell you what I think I would do. I would probably play the game with him, an actually have a discussion with him about what he thinks the social messages of the game are. I can use it as an opportunity to open up an ongoing dialog about the concerns. At some point, we would probably talk about the hot coffee controversy. Helping kids think for themselves is our responsibility as parents. And while rules and limits are necessary, being willing to actually talk about those and be open to logical challenges from one's kids is helpful in helping them develop critical thinking skills and a social consciousness.
Now, by your argument, if your daughter's friend's parent buys Postal 2 and introduces your daughter to that game over at their house, your logic would suggest that you would want to hold the friend's parents (possibly legally) responsible for exposing your daughter to ideas you personally would rather shelter her from. If this is not the case then how is this different from your child buying the video game herself? If this is the case, then is that not the sort of censorship that we are trying to prevent?
The Constitution provides broad rights for you to parent your daughter as you see fit but being the only source of information on things like violence and sexuality is not.
Going back to the version collected and recorded by Jacob and Wilhelm Grimm.... The story is pretty violent but there isn't much sexuality.
A better example might be the Viking Romance collection put together by Penguin Books. These are medieval heroic stories from Scandenavia during the Viking age. In one of these stories we find the following sexual advances:
"I want to steel my warrior."
"I want to put your ring around my stump."
"I want to water my horse in your winespring." During the sexual activity, the response is "I am afraid you are drowning your horse."
"I want to put my stopper in your bunghold." During the sexual activity the response is "I am afraid you have pushed the stopper clear through into the barrel" or something to that effect.
The last one is, for those who are dense, a reference to a barrel of mead or beer. At the same time, literary works such as this do not seem to fall under indecency law, but IANAL.
I dunno. I think that Roberts is a good chief justice, and one heck of a legal mind.
The thing is that you have elected officers not wanting to hijack the supreme court for political agendas, but at the same time, having to appease their bases. Hence we get Alito as well as Roberts who is not only a lower caliber judge but whose legal philosophy is more supportive of a particular political agenda. (You also see people like both O'Connor who tried to be extremely methodical and Scalia who appears often to put political ideology before methodology.)
IANAL though and these are just my observations:-)
Sure, but, see my question about due notice requiremnets. IANAL, of course.
My concern is this: If I reprint coupons after routine hard drive reformats (say, for reasons of testing software) does the DMCA count this as a violation? Am I attacking the technological measure or just taking advantage of the fact that it is fundamentally broken? Does the DMCA prevent me from pointing out that this is fundamentally broken and that reformatting removes the restrictions?
If there are not notices which say you can only print the coupon twice, then isn't everything functioning within designed parameters? Aren't they giving me permission to print it again and again?
This sort of appliction of the DMCA seems very troubling. A vendor could release a product which malfunctioned under common circumstances, granting additional rights. If using the device under these circumstances (or even creating these circumstances) becomes a violation of the DMCA, this would seem to be the *perfect* tool of parties like the RIAA to add catch-all clauses to their music sharing lawsuits. (What? You never tried to listen to this CD when the temperature was above 65 degrees farenheight? Are you sure? Doing this removes the copy protection in violation of the DMCA)?
I actually have 2 Windows boxes that get reformatted fairly frequently because they are used in part for testing my OSS apps on Windows and I want to guarantee that I am starting from a known environment. If I were to print coupons after each reformat, that might be fraud, but I have a hard time imagining that it constitutes a circumvention violation under the DMCA.
Which pretty much articulates what I said. Practical components are not protected, but substantial literary/expressive components may be (the example they give is a cookbook, but if I write the instructional components to a recipe entirely in, say, iambic pentameter 4-line stanzas, whouldn't my poetry be protected even if the practical components were not?
I.e. I couldn't prevent anyone from taking the recipe, rewriting the practical components in allitterative strophes and copyrighting that. That would not seem to be a derivative work by my reading, but IANAL.
In short, copyright only protects original expressive components under US copyright law. In fact, the link I provided gives instructions for registering the copyright of a recipe.
I agree with you. However, though IANAL, I have not yet seen case law defining circumvention device or "effectively controls." If you can point me to one, I would be glad to admit we are talking about something more than untested theories.
IANAL but I think that the standard would be somewhat different here. There are still bound to be similarities in implementation even if the standards are different.
One of the problems is that nobody *really* wants the courts to get involved in determining how robust a system of protection really is or how robust it needs to be under the law when it is attacked by attacked by a user. So the question is what defines an effect of controlling access and what defines circumvention. The DMCA might cover the case in question (I do think it is a stretch and that it *should not* cover it) but we don't reallly know because there haven't been many cases which look at what constitutes an effective control and those that have looked at circumvention have done so on other bases (for example, you can't use the DMCA to prevent compatibility between your material products and your competitor-- seems like a no brainer but yes this has actually been tried).
My argument is thus subtly different. If a commonplace environmental condition or event (such as hand washing or reformatting the hard drive) grants unauthorized access, the system cannot be said to "effectively control access" to the work. In other words, I would suggest that it must be effective in controlling access to the work under normal circumstances. In other words, you can't include a technological measure that only handles some normal circumstances and sue users under the DMCA when the system breaks or when they post in forums about when it broke. Similarly if it is that fragile, it doesn't deserve protection in the first place because arguably you are only using the DMCA provision at that point to enforce other licenses/agreements and not to actually technoligically controll access.
Similarly, I don't think that technological controls which some people may already be capable of circumventing simply by reading (such as ROT-13) might be problematic. Is decoding the ROT13 in your computer a crime but doing it in your head OK?
Unfortunately, I am not aware of any case that defines "effectively controls." The main cases I have followed tended to rely on questions of copyright abuse (Lexmark vs Static Control Components, for example) and therefore were dismissed on the basis that copyright was being used to achieve ends which were both dangerous to the public and otherwise outside the scope of copyright law (the 6th Circuit ruled that the DMCA cannot be used in combination with encryption software to prevent third parties from providing toner cartridges for Lexmark printers despite the fact that copyrighted software *was* copied and that access control measures to that software *were* circumvented). For this reason I don;t think there is actually any legal standard in effect yet.
Funny, we seem to be making arguments towads a similar standard. IANAL, of course.
My argument is that something which gets broken by ordinary circumstances generally used without the intention of circumvention would be hard to consider as "effectively controlling" access. In effect, it doesn't control much of anything.
Holding in shift key to disable autorun because you often do this might be hard to prosecute. Using Alt-Printscreen plus a standard OCR program might not be a circumvention measure (it is frequently used feature of the OS not addressed by the access control measure).
THe question is where you draw the line. My own thinking is that in this case, the control is not sufficeintly effective (i.e. it doesn't really have the effect of controlling much of anything). I.e. even assuming it is working properly and is not deliberately attacked, it is going to be broken not infrequently.
I think that the guy may have committed fraud, but from what I have read has not circumvented a measure that effectively controls access to anything.
Please note-- by some interpretations, this comment may be in violation of the DMCA. However, I believe that it is protected under the 1st Amendment because although it has practical components, these are required to illustrat ethe point.
Circumvention instructions: If you want to circumvent the access controls for the site, all you have to do is reformat your computer's hard drive, and reinstall Windows. Then reinstall the application and print new coupons. Now, reinstalling solely for the purpose of printing new coupons might be seen as illegal under the DMCA, so here is how to get around that:
You can force yourself to *require* circumvention techniques by opening up files like ntldr.* and changing random parts with a hex editor until your computer refuses to boot. Another option is to take the opportunity to reverse engineer the internals of the registry. Hex editors on the hive files work wonders! You could even take the time to experiment with deep system changes via the registry and see what it really takes to reduce your Windows installation to a paperweight.
Pseudocode for random file change might be something like:
while (1){ seek(file, random(256)); write (file, random(256)); }
Alternatively you can go searching for cheap porn in Internet Explorer until you get some adware bad enough to require you to reformat and reinstall. Viruses are good too. And if you turn of any firewalls, you can probably pick up some viruses and worms that may even install back doors. Back doors are good because, without a format and a reinstall, you cannot be sure your system is ever secure again. If you can't do this, you cant be sure people won't start trading kiddy porn on your computer. Hence your only way to recover is to format and the access control measure is just collateral damage. Cool, huh?
Note that the above text is offered in the spirit of satire, but it would almost certainly work given the descriptions thus far.
The problem with the idea that this is problematic under the DMCA. Now, the problem with assuming that the above instructions violate the DMCA is that they show that steps which are frequently, and often routinely used for PC troubleshooting, maintenance, and recovery would also circumvent the access controls. I have a hard time imagining how an access control measure which cannot withstand routine sotware recovery steps usually used for unrelated purposes can ever be said to "effectively control" access to a work. In short, routine actions unrelated to the intent to break the system effectively circumvent the access control measure. Thus the requirement that the measure "effectively controls" the work seems not to be met because it does *not* have this effect under normal real-world conditions even without intentional interference.
1) Food recipies would have sufficient original expression in them to qualify as copyrightable. 2) The expression may not be great enough to prevent distribution of a single recipie at a time from being fair use. 3) The copyright only covers the expressive elements. Things like: Summer Treat Variation: add blueberries, and put in the freezer! If I rephrase this as "In summer, you can make a refreshing treat by adding blueberries and then freezing." that might not be derivative. 4) Practical aspects of any recipe (including paint, pharmaceuticals, etc) are not protected under copyright law, as this is pretty standard in the US at least.
How about if you install the cracking software prior to installing the coupon software. Surely under the DMCA you are implementing a security system to ensure the security and full usability of your computer so that the company that supplies the coupon software is committing a criminal act under the DMCA by trying to break your security system;). Does any system "effectively control" access to a work if possibly routine maintenance measures such as reformatting the hard drive effectively circumvent the access control measures?
IANAL, but I think you are right for the wrong reason:-).
The basic problem is this:
Yes, there is a lock, but the DMCA does not specify encryption, just some technological measure that, in effect, controls access to the system. "Effectively controls" means "in effect controls."
For example, if I release an access control measure that has a bug in it which causes it to stop controlling access the third tuesday after it is installed, then one would think that once the bug hits, that accessign the work would not be a problem. After all the effect of controlling access no longer happens.
I would similarly argue that if washing my hands after using the restroom interfered with a technological access control, that using the work after washing my hands would not constitute a violation either because the process is both routine and not intended to circumvent. I would argue that in this case the measure does not effectively control access because it fails to handle many reasonably common conditions without granting unauthorized access. Drawing the line otherwise to protect such obviously broken access control measures would allow content writers to release known-defective access control measures to the public with the direct intent of making arbitrary lawsuits easier (You *never* used this product with wet hands?).
The question is whether this system was really designed such that it effectively controls access to the system under sufficiently broad conditions that might justify this condition and whether there are commonplace and unrelated conditions which effectively circumvent the measure. I would argue that there are in this case. There are many higher-end Windows users who do regularly reformat their hard drives. This is done without intent to print additional coupons but nonetheless it temporarily defeats the access control measure. Furthermore, industry-standard recommendations for recovering from security incidents *mandates* taking measures that would as a side effect temporarily defeat the access control measure.
Therefore it is hard to see how these things "effectively control" access to a work. In fact they do *not* have the effect of controlling access in ways which are not circumvented by standard maintenance procedures for certain types of problems (procedures which have long been used by some Windows users as routine measures to prevent performance problems).
If it is not there on the site or the coupon, then you may have an issue. If you don't tell me how many I can print, I can't print any at all. If I can print them, is there any limit to how many I can print? Wouldn't this need to be declared some how? Are there any due notice requirements?
IANAL, so I don't know all the answers to these questions.
You mean that copy protection crackable by magic markers [slashdot.org] is 'effective'? I think they mean 'effectively' in the sense of 'in effect', not 'with good performance'. Agreed.
However, does something in effect control access to a work when generally used and pre-existing maintenance processes for the underlying system circumvent the access control?
If deleting files and registry keys works, then surely the format/reinstall would be a circumvention device as well. In short, I am not sure that it does effectively control access simply because many generally accepted industry-standard responses to things like security incidents also circumvent the measure whether intentionally or not.
IANAL, but I think the intent is that the effectiveness of the access control measure is considered when the measure is in place. So yes, that might apply. I still think it is a stretch though. I will explain why. Heck, even if it is not a stretch it is incredibly stupid on the part of coupons.com.
Even if the access control effectiveness is measured when it is in place, there are many cases where in the due course of operating Windows, you are likely to circumvent this measure whether or not this is intentional. Got lots of spyware and decide to format/reinstall? Now you can print additional coupons. Does formatting/reinstalling Windows become barred under the DMCA by this measure? Or are you simply barred from any further use of coupons.com (in short accoding to the DMCA, you can no longer be their customer)?
I do not think that any measure which is circumvented frequently without intention to do so can ever be said to effectively control access to a device. It does *not* effectively do so because it is circumvented every time a hard drive is formatted and the OS reinstalled, or every time a new device is purchased. Therefore it can hardly be said to effectively control anything from this perspective.
Now, I am not defending what the guy did. I think it is fraud and should be dealt with as such. But treating this as a DMCA violation is quite frankly bad for everyone. Yes, I agree that this is a question of law that a court is likely to have to decide (i.e. what does "effectively control" mean). However, I think that any measure which is routinely circumvented through the due course of maintaining a system cannot be said to qualify by any reasonable definition I can think of (even the fairly broad reading I give the restriction).
Note that your points only apply to the specifics, not the general principles. IANAL though.
I don't think that the right to return merchandise in this case is seen so much as a liberty or right as it is a statutory obligation on the part of the shop owner. It is less a matter of the customer agreeing not to excersize some rights otherwise granted as it is a requirement on the shop owner to uphold other obligations.
You can think of it this way:
A contract can generally allow you to waive rights but not always obligations on the other party. If the law says you must accept returns, then and that cannot be waived in a contract, then the contract cannot override that obligation. But one cannot try to get out of an inemnification clause by arguing free speech.
In short one can *always* waive rights and take on additional responsibilities, but one might not generally be able to *remove* otherwise required responsibilities on the other party unless the statute says otherwise (in Washington State, implied warranties are considered to be in effect unless waived by contract-- the question is one of representation of a product rather than obligations of the seller to take back defective merchandise).
Unfortunately, no. There's interaction with federal "tort reform" legislation passed in 2005 which favors arbitration. There's a question as to whether federal preemption of state law applies here. The 9th Circuit ruled that it didn't. IANAL, but I don't think that your response had much to do with my point except for possibly excluding similar federal cases. Granted my understanding in these matters is somewhat lacking and is derived mostly from listening to the Roberts and Alito confirmation hearings.
Wouldn't application to the states require some sort of extension of the article 1 powers? I.e. the States could enact different laws if they want. The Federal government could make some money for state programs dependant on the States enacting such laws. But the federal government can't arbitrarily override state law, can it?
So absent other considerations, I see nothing in Article 1 which gives the Federal government the right to arbitrarily interfere with State contract law. So the 9th Circuit's decision seems to be a no-brainer.
Now, this might be different in federal cases. And it might not apply in the same way to residents of Louisiana, but the basic legal ideas seem pretty basic and sound to me.
IANAL, but the legal principles you articulated seem to be pretty much a part of common law, which is recognized in 49 out of 50 states. (All except Louisiana which uses a different tradition (the Napoleonic, sp?, Code, iirc). I would expect similar considerations to be a part of the equivalent tradition even there.
1) The second amendment does not protect any specific individual's right to bear arms separately from the right of the people to have a well-regulated militia. Therefore convicted felons can be denied the right to own weapons.
2) The second amendment would be limited to milita-type weapons (probably assault rifles, rpgs, etc. Probably not nuclear demolition munitions, etc regardless of the portability of these weapons)
3) Militias are *not* government military entities but rather military entities comprised mostly of civilians and only including military personel on occasion.
Slashdot Mirror
My view is simple:
Provide sufficient grants (not loans) to allow anyone regardless of income level to afford a BS/BA. Do this while increasing tuition rates to compensate. Alternatively, one could raise upper bracket income tax rates to compensate.
After all, the most rich (such as Bill Gates, etc) get rich partly based on the work of the educated today. Why not ask them to pay for part of that investment. Seems fair to me. Heck, as my business grows, I might have to be part of such a solution (our real limit at the moment is finding people who are knowledgable and qualified for certain types of systems).
However, I do not think that this should be conditional nor should humanities be discriminated against. We need engineers and scientists, but we also need philosophers, historians, and other people who can help view and address the complex issues which arise in social systems. Having people who can advance the teaching of arts and music also helps all of us by providing a more enjoyable society (my sister is finishing up her Doctorate of Musical Arts and is nearly $100000 in debt-- I don';t see how this is sustainable as tuition rates keep going up).
Well, I have some land in Nebraska I would like to sell you. Ocean view and the whole nine yards. Please pay in small unmarked bills.... Why is it the government's job to make sure that kids are not harming their bodies? If a parent wants to buy smokes for their kids, that's their choice. I think it is a wrong choice, but that's for them to decide on their own. How's this: If an adult has the right to purchase cigarettes, or alcohol, or dirty magazines or whatever, why not children? Answer that and apply that answer to violent video games. I don't believe that it is the government's job to keep kids from harming their bodies. If it was, we should outlaw selling junk food to minors... "No, you may not buy that candy bar, but I can sell you some carrots...."
I would draw the line with tobacco however. The reason is not just that it is physically harmful but tht it is also quite strongly emotionally and physically addictive. It is thus ok with me to make it a little harder to start a habit which is likely to be a large struggle possibly for the rest of an individual's life (I do know smokers who go through quitting/relapsing cycles).
As for alcohol, I think we would be better off to make the legal drinking age a bit lower than the legal driving age, and do what we can to encourage responsible alcohol use by teenagers.
As for dirty magazines... I also think it would be better public policy to encourage worrying about this less. However, the fact remains that this is a sore subject for a lot of people and hence... anyway, it is not as if a teenager who tries to find porn on the internet can't. Why discriminate on the basis of media?
Also which is more dangerous to a child's development? Suppose the child is able to buy a dirty magazine....
Or suppose that a child swipes his parents' credit card and purchases a subscription to a porn site. His mother finds out about it, the marriage was already under strain and it is the final straw. Now the child has seen not only the nude or possible sexually explicit images, but also is going to feel *directly* responsible for his parents' divorce. I wouldn't have a problem with that, but I think such a law would be an extreme over reaction. But you are arguing the opposite, that it is OK for children to buy anything they want, with or without their parents' permission. True. But I think we should be careful about restricting sales of things to minors on the mere supposition that it might possibly be bad for them. Heck, we *know* candy bars are bad for kids.
Earlier you had said: I'm sorry, but I don't see how these laws are unconstitutional. If the intent of the law is to punnish video game makers with fewer sales for making violent video games would this be a violation of the right to free speech? What if the law were stronger to more or less ensure that such game vendors could not make back their original R&D costs?
I would argue that the nature of the law is usually aimed at removing violent games from the public to the greatest extent possible and therefore are unconstitutional. Some parents give their child birthday money or allowance or whatever and let them buy whatever they want. And maybe forbidding the child from buying the video game is the wrong approach. If my son was older (say, 7) and managed to get ahold of GTA3, what should my response be?
I can tell you what I think I would do. I would probably play the game with him, an actually have a discussion with him about what he thinks the social messages of the game are. I can use it as an opportunity to open up an ongoing dialog about the concerns. At some point, we would probably talk about the hot coffee controversy. Helping kids think for themselves is our responsibility as parents. And while rules and limits are necessary, being willing to actually talk about those and be open to logical challenges from one's kids is helpful in helping them develop critical thinking skills and a social consciousness.
Now, by your argument, if your daughter's friend's parent buys Postal 2 and introduces your daughter to that game over at their house, your logic would suggest that you would want to hold the friend's parents (possibly legally) responsible for exposing your daughter to ideas you personally would rather shelter her from. If this is not the case then how is this different from your child buying the video game herself? If this is the case, then is that not the sort of censorship that we are trying to prevent?
The Constitution provides broad rights for you to parent your daughter as you see fit but being the only source of information on things like violence and sexuality is not.
Going back to the version collected and recorded by Jacob and Wilhelm Grimm.... The story is pretty violent but there isn't much sexuality.
A better example might be the Viking Romance collection put together by Penguin Books. These are medieval heroic stories from Scandenavia during the Viking age. In one of these stories we find the following sexual advances:
"I want to steel my warrior."
"I want to put your ring around my stump."
"I want to water my horse in your winespring." During the sexual activity, the response is "I am afraid you are drowning your horse."
"I want to put my stopper in your bunghold." During the sexual activity the response is "I am afraid you have pushed the stopper clear through into the barrel" or something to that effect.
The last one is, for those who are dense, a reference to a barrel of mead or beer. At the same time, literary works such as this do not seem to fall under indecency law, but IANAL.
I dunno. I think that Roberts is a good chief justice, and one heck of a legal mind.
:-)
The thing is that you have elected officers not wanting to hijack the supreme court for political agendas, but at the same time, having to appease their bases. Hence we get Alito as well as Roberts who is not only a lower caliber judge but whose legal philosophy is more supportive of a particular political agenda. (You also see people like both O'Connor who tried to be extremely methodical and Scalia who appears often to put political ideology before methodology.)
IANAL though and these are just my observations
Sure, but, see my question about due notice requiremnets. IANAL, of course.
My concern is this: If I reprint coupons after routine hard drive reformats (say, for reasons of testing software) does the DMCA count this as a violation? Am I attacking the technological measure or just taking advantage of the fact that it is fundamentally broken? Does the DMCA prevent me from pointing out that this is fundamentally broken and that reformatting removes the restrictions?
If there are not notices which say you can only print the coupon twice, then isn't everything functioning within designed parameters? Aren't they giving me permission to print it again and again?
This sort of appliction of the DMCA seems very troubling. A vendor could release a product which malfunctioned under common circumstances, granting additional rights. If using the device under these circumstances (or even creating these circumstances) becomes a violation of the DMCA, this would seem to be the *perfect* tool of parties like the RIAA to add catch-all clauses to their music sharing lawsuits. (What? You never tried to listen to this CD when the temperature was above 65 degrees farenheight? Are you sure? Doing this removes the copy protection in violation of the DMCA)?
I actually have 2 Windows boxes that get reformatted fairly frequently because they are used in part for testing my OSS apps on Windows and I want to guarantee that I am starting from a known environment. If I were to print coupons after each reformat, that might be fraud, but I have a hard time imagining that it constitutes a circumvention violation under the DMCA.
Your reading foo needs work, young grashopper ;-)
The first link it returns is: http://www.copyright.gov/fls/fl122.html
Which pretty much articulates what I said. Practical components are not protected, but substantial literary/expressive components may be (the example they give is a cookbook, but if I write the instructional components to a recipe entirely in, say, iambic pentameter 4-line stanzas, whouldn't my poetry be protected even if the practical components were not?
I.e. I couldn't prevent anyone from taking the recipe, rewriting the practical components in allitterative strophes and copyrighting that. That would not seem to be a derivative work by my reading, but IANAL.
In short, copyright only protects original expressive components under US copyright law. In fact, the link I provided gives instructions for registering the copyright of a recipe.
I agree with you. However, though IANAL, I have not yet seen case law defining circumvention device or "effectively controls." If you can point me to one, I would be glad to admit we are talking about something more than untested theories.
IANAL but I think that the standard would be somewhat different here. There are still bound to be similarities in implementation even if the standards are different.
One of the problems is that nobody *really* wants the courts to get involved in determining how robust a system of protection really is or how robust it needs to be under the law when it is attacked by attacked by a user. So the question is what defines an effect of controlling access and what defines circumvention. The DMCA might cover the case in question (I do think it is a stretch and that it *should not* cover it) but we don't reallly know because there haven't been many cases which look at what constitutes an effective control and those that have looked at circumvention have done so on other bases (for example, you can't use the DMCA to prevent compatibility between your material products and your competitor-- seems like a no brainer but yes this has actually been tried).
My argument is thus subtly different. If a commonplace environmental condition or event (such as hand washing or reformatting the hard drive) grants unauthorized access, the system cannot be said to "effectively control access" to the work. In other words, I would suggest that it must be effective in controlling access to the work under normal circumstances. In other words, you can't include a technological measure that only handles some normal circumstances and sue users under the DMCA when the system breaks or when they post in forums about when it broke. Similarly if it is that fragile, it doesn't deserve protection in the first place because arguably you are only using the DMCA provision at that point to enforce other licenses/agreements and not to actually technoligically controll access.
Similarly, I don't think that technological controls which some people may already be capable of circumventing simply by reading (such as ROT-13) might be problematic. Is decoding the ROT13 in your computer a crime but doing it in your head OK?
Unfortunately, I am not aware of any case that defines "effectively controls." The main cases I have followed tended to rely on questions of copyright abuse (Lexmark vs Static Control Components, for example) and therefore were dismissed on the basis that copyright was being used to achieve ends which were both dangerous to the public and otherwise outside the scope of copyright law (the 6th Circuit ruled that the DMCA cannot be used in combination with encryption software to prevent third parties from providing toner cartridges for Lexmark printers despite the fact that copyrighted software *was* copied and that access control measures to that software *were* circumvented). For this reason I don;t think there is actually any legal standard in effect yet.
Funny, we seem to be making arguments towads a similar standard. IANAL, of course.
My argument is that something which gets broken by ordinary circumstances generally used without the intention of circumvention would be hard to consider as "effectively controlling" access. In effect, it doesn't control much of anything.
Holding in shift key to disable autorun because you often do this might be hard to prosecute. Using Alt-Printscreen plus a standard OCR program might not be a circumvention measure (it is frequently used feature of the OS not addressed by the access control measure).
THe question is where you draw the line. My own thinking is that in this case, the control is not sufficeintly effective (i.e. it doesn't really have the effect of controlling much of anything). I.e. even assuming it is working properly and is not deliberately attacked, it is going to be broken not infrequently.
I think that the guy may have committed fraud, but from what I have read has not circumvented a measure that effectively controls access to anything.
Please note-- by some interpretations, this comment may be in violation of the DMCA. However, I believe that it is protected under the 1st Amendment because although it has practical components, these are required to illustrat ethe point.
Circumvention instructions:
If you want to circumvent the access controls for the site, all you have to do is reformat your computer's hard drive, and reinstall Windows. Then reinstall the application and print new coupons. Now, reinstalling solely for the purpose of printing new coupons might be seen as illegal under the DMCA, so here is how to get around that:
You can force yourself to *require* circumvention techniques by opening up files like ntldr.* and changing random parts with a hex editor until your computer refuses to boot. Another option is to take the opportunity to reverse engineer the internals of the registry. Hex editors on the hive files work wonders! You could even take the time to experiment with deep system changes via the registry and see what it really takes to reduce your Windows installation to a paperweight.
Pseudocode for random file change might be something like:
while (1){
seek(file, random(256));
write (file, random(256));
}
Alternatively you can go searching for cheap porn in Internet Explorer until you get some adware bad enough to require you to reformat and reinstall. Viruses are good too. And if you turn of any firewalls, you can probably pick up some viruses and worms that may even install back doors. Back doors are good because, without a format and a reinstall, you cannot be sure your system is ever secure again. If you can't do this, you cant be sure people won't start trading kiddy porn on your computer. Hence your only way to recover is to format and the access control measure is just collateral damage. Cool, huh?
Note that the above text is offered in the spirit of satire, but it would almost certainly work given the descriptions thus far.
The problem with the idea that this is problematic under the DMCA.
Now, the problem with assuming that the above instructions violate the DMCA is that they show that steps which are frequently, and often routinely used for PC troubleshooting, maintenance, and recovery would also circumvent the access controls. I have a hard time imagining how an access control measure which cannot withstand routine sotware recovery steps usually used for unrelated purposes can ever be said to "effectively control" access to a work. In short, routine actions unrelated to the intent to break the system effectively circumvent the access control measure. Thus the requirement that the measure "effectively controls" the work seems not to be met because it does *not* have this effect under normal real-world conditions even without intentional interference.
IANAL, but can you provide case law?
I would think that (in the US):
1) Food recipies would have sufficient original expression in them to qualify as copyrightable.
2) The expression may not be great enough to prevent distribution of a single recipie at a time from being fair use.
3) The copyright only covers the expressive elements. Things like: Summer Treat Variation: add blueberries, and put in the freezer! If I rephrase this as "In summer, you can make a refreshing treat by adding blueberries and then freezing." that might not be derivative.
4) Practical aspects of any recipe (including paint, pharmaceuticals, etc) are not protected under copyright law, as this is pretty standard in the US at least.
System Restore: Now a Circumvention Measure under the DMCA...
IANAL, but I think you are right for the wrong reason :-).
The basic problem is this:
Yes, there is a lock, but the DMCA does not specify encryption, just some technological measure that, in effect, controls access to the system. "Effectively controls" means "in effect controls."
For example, if I release an access control measure that has a bug in it which causes it to stop controlling access the third tuesday after it is installed, then one would think that once the bug hits, that accessign the work would not be a problem. After all the effect of controlling access no longer happens.
I would similarly argue that if washing my hands after using the restroom interfered with a technological access control, that using the work after washing my hands would not constitute a violation either because the process is both routine and not intended to circumvent. I would argue that in this case the measure does not effectively control access because it fails to handle many reasonably common conditions without granting unauthorized access. Drawing the line otherwise to protect such obviously broken access control measures would allow content writers to release known-defective access control measures to the public with the direct intent of making arbitrary lawsuits easier (You *never* used this product with wet hands?).
The question is whether this system was really designed such that it effectively controls access to the system under sufficiently broad conditions that might justify this condition and whether there are commonplace and unrelated conditions which effectively circumvent the measure. I would argue that there are in this case. There are many higher-end Windows users who do regularly reformat their hard drives. This is done without intent to print additional coupons but nonetheless it temporarily defeats the access control measure. Furthermore, industry-standard recommendations for recovering from security incidents *mandates* taking measures that would as a side effect temporarily defeat the access control measure.
Therefore it is hard to see how these things "effectively control" access to a work. In fact they do *not* have the effect of controlling access in ways which are not circumvented by standard maintenance procedures for certain types of problems (procedures which have long been used by some Windows users as routine measures to prevent performance problems).
If it is not there on the site or the coupon, then you may have an issue. If you don't tell me how many I can print, I can't print any at all. If I can print them, is there any limit to how many I can print? Wouldn't this need to be declared some how? Are there any due notice requirements?
IANAL, so I don't know all the answers to these questions.
However, does something in effect control access to a work when generally used and pre-existing maintenance processes for the underlying system circumvent the access control?
If deleting files and registry keys works, then surely the format/reinstall would be a circumvention device as well. In short, I am not sure that it does effectively control access simply because many generally accepted industry-standard responses to things like security incidents also circumvent the measure whether intentionally or not.
IANAL, but I think the intent is that the effectiveness of the access control measure is considered when the measure is in place. So yes, that might apply. I still think it is a stretch though. I will explain why. Heck, even if it is not a stretch it is incredibly stupid on the part of coupons.com.
Even if the access control effectiveness is measured when it is in place, there are many cases where in the due course of operating Windows, you are likely to circumvent this measure whether or not this is intentional. Got lots of spyware and decide to format/reinstall? Now you can print additional coupons. Does formatting/reinstalling Windows become barred under the DMCA by this measure? Or are you simply barred from any further use of coupons.com (in short accoding to the DMCA, you can no longer be their customer)?
I do not think that any measure which is circumvented frequently without intention to do so can ever be said to effectively control access to a device. It does *not* effectively do so because it is circumvented every time a hard drive is formatted and the OS reinstalled, or every time a new device is purchased. Therefore it can hardly be said to effectively control anything from this perspective.
Now, I am not defending what the guy did. I think it is fraud and should be dealt with as such. But treating this as a DMCA violation is quite frankly bad for everyone. Yes, I agree that this is a question of law that a court is likely to have to decide (i.e. what does "effectively control" mean). However, I think that any measure which is routinely circumvented through the due course of maintaining a system cannot be said to qualify by any reasonable definition I can think of (even the fairly broad reading I give the restriction).
Note that your points only apply to the specifics, not the general principles. IANAL though.
I don't think that the right to return merchandise in this case is seen so much as a liberty or right as it is a statutory obligation on the part of the shop owner. It is less a matter of the customer agreeing not to excersize some rights otherwise granted as it is a requirement on the shop owner to uphold other obligations.
You can think of it this way:
A contract can generally allow you to waive rights but not always obligations on the other party. If the law says you must accept returns, then and that cannot be waived in a contract, then the contract cannot override that obligation. But one cannot try to get out of an inemnification clause by arguing free speech.
In short one can *always* waive rights and take on additional responsibilities, but one might not generally be able to *remove* otherwise required responsibilities on the other party unless the statute says otherwise (in Washington State, implied warranties are considered to be in effect unless waived by contract-- the question is one of representation of a product rather than obligations of the seller to take back defective merchandise).
Wouldn't application to the states require some sort of extension of the article 1 powers? I.e. the States could enact different laws if they want. The Federal government could make some money for state programs dependant on the States enacting such laws. But the federal government can't arbitrarily override state law, can it?
So absent other considerations, I see nothing in Article 1 which gives the Federal government the right to arbitrarily interfere with State contract law. So the 9th Circuit's decision seems to be a no-brainer.
Now, this might be different in federal cases. And it might not apply in the same way to residents of Louisiana, but the basic legal ideas seem pretty basic and sound to me.
IANAL, but the legal principles you articulated seem to be pretty much a part of common law, which is recognized in 49 out of 50 states. (All except Louisiana which uses a different tradition (the Napoleonic, sp?, Code, iirc). I would expect similar considerations to be a part of the equivalent tradition even there.
IANAL either, but there are all sorts of other contracts which may do things like prevent or compel speech (indemnification clauses, or example),
"YOu agree not to sue us" certainly pushes it. "NO WARRANTY EXPRESSED OR IMPLIED" is probably less of a problem in most jurisdictions.
A lot of this is contextual. Not all rights can be waived in contract, but I would say that most rights could be.
My understanding from Findlaw is that:
1) The second amendment does not protect any specific individual's right to bear arms separately from the right of the people to have a well-regulated militia. Therefore convicted felons can be denied the right to own weapons.
2) The second amendment would be limited to milita-type weapons (probably assault rifles, rpgs, etc. Probably not nuclear demolition munitions, etc regardless of the portability of these weapons)
3) Militias are *not* government military entities but rather military entities comprised mostly of civilians and only including military personel on occasion.
4) The States can enact further restrictions.
Do I have something wrong?