If a sizeable portion of the population holds to an "uninformed" side, then you had better teach that, too. Heck, I try to teach my kids what Democrats think and we have a great discussion about it.
Don't make more of this than what it is. Of COURSE you want both taught in school. We still study the theory that the earth is flat and show how that doesn't jibe with modern scientific understanding. What's wrong with talking about creationism and where it differs with modern scientific understanding?
You realize, of course, that Obama is seriously anti-trade -- it will be harder for you to get work in the US, not easier. And, as a result, it will be harder for people in the US to get work in Canada.
Unfortunately, there is a xenophobic undercurrent in US politics. That's why mentioning Obama's middle name (Hussein) is verboten, why immigration is as big of an issue as it is, and why the Democrats are running away from trade deals.
That's rather conclusory -- if Psystar wins, it will be partially because the court agrees with you on this. But, they may not win -- there have been cases on both sides.
There is a decent argument that the license is binding. First of all, it's not possible to "reject the license" and then install the software. Assuming that Apple's install procedure works like most procedures, the first thing the install procedure does is bring up the license, and it won't install the software until you accept it.
Now, you can make various arguments that even if you click "accept," the license isn't binding. Take, for example, lack of consideration -- you already have the right to install and run it, so the license doesn't give you anything new.
The other argument is basically the ProCD argument -- you knew when you bought the software that (1) there was a license and (2) Apple only wanted to sell the software to people who bought the license. By buying the software, knowing that it was subject to the license, you accepted the license.
So, as a lawyer, I don't consider the GPL to be written in "legalese." It's just not written very well, especially v2.
When drafting a document, a lawyer tries to make sure that it can only be read one way--his. Often lawyers drop into the habit of "legalese" to do this. And, as a result, that document may be difficult for non-lawyers to understand. But, that "legalese" is rarely required.
So, here's an example of the GPLv2 poor drafting:
The "Program", below, refers to any such program or work, and a "work based on the Program" means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language.
So, what does the part after the colon refer to? Does it mean that "any derivative work under copyright law" is the same thing as "a work containing the Program or a portion of it"? If so, then it's just plain wrong, because those are two different things.
So, if you look toward the end of Section 2, where the GPL uses the expression "work based on the Program," is it talking about "derivative works" or the broader category that includes "works containing the program"? The next-to-last sentence in Section 2 now talks about "collective works" for the first time -- where did that come from?
Preparing a good contract is a lot like writing code cold without having the chance to debug it. You spend a lot of time making sure (1) that it does exactly what you want and (2) that your audience will be able to read it. Considering that similarity, I'm surprised at how many "bugs" the GPL has.
Well, that's really up to the industry. The recording industry would have to decide amongst itself how to divvy up the proceeds. Presumably, if an artist felt that he/she wasn't getting enough, she/she could opt out. Naturally, you can see some issues coming up here where fading divas put up hissy fits when their royalties drop.
A voluntary license doesn't cover everybody and so can be problematic -- you would have to check every time to see if your artist was on the list. There's also the problem of what happens when your artist drops off the list.
The other question, which remains unanswered is what does he mean by "access" -- do they give you a site to download the music, or is this basically "we can't sue you for copying this list"? (If they give you a site to download the music, then why do they want the ISPs to collect the money?)
You've pointed out a great example of what I was talking about -- nowhere on that page does it say "You can only use this on Macintosh computers" or make any reference to a license agreement.
That right is asserted inside the license. Taking advantage of that, presumes that the unwitting buyer has already read and accepted the license. What if that's not the case?
Actually, no. As contemplated by the ProCD court, your right to return the software comes from the UCC, contract law and the rules around offer and acceptance, not from the agreement itself. The License could say "You cannot return this software to the store" and you still would be able to, because doing so negates the entire license.
In answer to your last question about why Amazon isn't bound, the answer is because Amazon and Apple have a separate agreement. If both Apple and Amazon agree that the EULA doesn't apply to Amazon's resale, then it doesn't apply. Also, the Apple EULA, by its terms, probably only applies only to end users.
I agree that the whole mess is unsatisfactory. There was a move in the 1990's to standardize the law around this sort of thing through a uniform law that the states were all going to adopt, known as UTICA. I seem to recall that it was only adopted in Virginia and maybe one other state.
You have the right to return it if you don't accept the license agreement. Whether the store wants to make it easy is another matter. This is a case whether common practice differs from the legal requirement.
I've read the case, and it was absolutely "tried properly." The Court's view (in response to your original point) was that it would be silly to require the EULA to be printed on the outside of the box when there's potentially a lot more useful things that can be put there.
An interesting situation comes up when companies don't put any indication of an EULA on the packaging at all -- if my recollection of the case is correct, it was premised on the box saying something like "subject to the terms contained in the EULA." If you don't have at least that sort of minimum statement on the box, then it's harder to claim that you should be bound by the EULA. (Of course, just about all software is accompanied by a license agreement, so that's not a particularly strong case.)
Note that one of the problems is tiered licensing , which is especially common in enterprise software. Basically, a company sends out one disk and says "If you're going to run this on a desktop, the price is $XXX. If you're going to run this on a typical server, the price is $XXX and if you're going to run this on a huge multi-core enormous server, the price is $XXX." If you actually buy a copy of the software (instead of just licensing it), then you could pay the desktop price and install it on the ginormous server.
If you can touch ram (and, I can -- I installed some in my computer a few weeks ago) or a hard drive, then it's sufficiently tangible. The fixation requirement just means that it has to be accessible for more than transitory duration.
Well, you've just given the argument for the rulings that say that you do have that right. Basically, those say that if you get a copy and you don't have to give it back, then you own it.
The other side says that if you get a copy and agree that you don't own it, then you don't own it. And, that agreement comes in the license "agreement" which is binding because you bought the software knowing that it was covered by a license agreement.
So that's one of the reasons I think the GPL could have used a little more editing by a good lawyer. Those sections are clearly intended to apply to all uses, but because of Section 9, there's a decent argument that they don't.
When you buy software knowing that it is covered by a license agreement the seller intends to apply to you, the sale itself is conditioned upon your acceptance of the license. See http://en.wikipedia.org/wiki/ProCD_v._Zeidenberg .
For the most part, the GPL only covers distribution. But, there are some terms that cover the end user -- see, for example, sections 15 and 16 of GPL v3. These are VERY much the sort of thing that EULAs are intended to cover.
In-memory copies count as copies. But, if you are the owner of a copy of computer software, then you can (under 17 U.S.C. 117(a)) copy it into computer memory for the purpose of running it without infringing.
The reason that EULAs are important is because software publisher asserts that you are not an owner of a copy. And, if you're not an owner of a copy, then Section 117(a) doesn't apply. There have been court decisions on both sides of this one.
As for your arguing about temporary buffer copies, those aren't "fixed" under the copyright act and thus are not infringing copies. (See the recent Cablevision case for a longer discussion). Your other cases (such as store-and-forward email) are cases either of an implied license or where there was no volitional act. (You're not liable if somebody else causes your computer to make a copy and you don't even know that copy exists.)
Copyright Infringement actions are decided under strict liability -- the "intent" of the person doing the copying doesn't matter.
Pfft. The requirement that you police other people's use of your logo does not mean that you have to police every single use. There is fair use of trademarks, and this use seems to be flatly in the middle of that. Anybody viewing the video is absolutely not going to think that it came from the IOC.
I would like to believe that this is true. But, the Republicans have shown themselves to be just as willing to let lobbyists write laws as the Democrats have. The principled Republican Party of 1994 doesn't exist any more.
So, this all basic economic theory and I must be doing a bad job of explaining it. Let me try again:
Suppose, as you say, MS sets up a distributor in, say France, that sells MS products at a huge markup over MS's prices -- at what ever that point is just before "returns start decreasing." (the "monopoly price"). MS sees that huge markup and thinks to itself, "I can take some of that." Now, it has two options:
1. It can raise the prices that it charges to the distributor. The distributor cannot raise its own prices in return, because if they do, returns will start decreasing -- they're already charging the monopoly price.
2. It just buys the distributor or sets up a subsidiary company that is its local distributor. And, now Microsoft gets its original profits AND the profits that the distributor was making.
In either case, the profits go back to Microsoft.
The only time when this doesn't happen is if the Distributor just charges some small margin over its cost -- if the distributor starts making too much, Microsoft will react and take that extra profit away.
Now, in reality, neither (1) nor (2) ever happens because Microsoft has already priced its software high enough that the distributor doesn't ever get the chance to make that monopoly profit to begin with.
"within the country, the sole distributor . . . pumps the price up because he has no competition to drive his prices down."
I think you're missing my point -- what stops MICROSOFT from doing this, either in the US (by jacking up the price that it charges distributors) or in foreign markets (by jacking up the price that it charges to the foreign distributor)?
If there is indeed a monopoly, there is only one monopoly profit to be made, and I see no reason why Microsoft would let the distributor keep that profit when Microsoft could claim it for itself.
Suppose that the European distributor appointed a single sub-distributor for, say Western Europe, who appointed a single sub-distributor for France. Would they each be able to pump up prices? Of course not. After all, each distributor and sub has a monopoly.
Pfft. Every company has a monopoly in its own product. Microsoft is the sole source of its goods in the US. If it sells a distributorship in another country, that distributor only steps into Microsoft's shoes.
The reason software prices are higher in Europe is that price and cost are not related. Europeans have more money (when converted into dollars) and can thus spend more of that money on software. Supply and Demand at work.
My position is that this is not distribution. You're still liable for copyright infringement, however, because you created the copies.
The copyright statute differentiates between distributing a work and offering to distribute it. In 17 U.S.C. 101, for example, "publication" is defined as either actual distribution or "offering to distribute." The two are not the same thing.
A copyright holder has several exclusive rights -- create copies, distribute a work, public performance, etc.... There is no exclusive right to "offer to distribute." There is only actual distribution.
That's my view -- the RIAA has a different view and courts have held both ways.
Forget about the number -- it's whether she distributed any at all.
The RIAA's claim is based on the idea that if you make a file available, you are distributing it, regardless of whether you actually distributed it anybody.
The problem with the RIAA's claim is that it make distributors out of everybody who happens to have a song on a shared folder, even if an official "p2p" network isn't involved. Consider Windows file sharing: if "My Documents" on your dorm computer is readable by the universe, congratulations -- you now owe the RIAA thousands of dollars. Remember, it isn't a question of whether anybody actually copied the song, or even of whether you intended to distribute it.
Consider this even more bizarre situation: Your kid installs p2p software on the family computer, sharing a directly called "music," that includes only songs he wrote & recorded. Later, you decide to rip your CD collection and, not knowing that there's p2p software, you stick it in "music." Now, you owe the RIAA a bunch of money.
Your rights here are largely determined by the contract between you and the hosting company. Typically, these things will list the conditions under which they will access private data stored on their server. If the contract is silent, then at best they're probably just limited to not selling data to your competitors or posting your naked pictures to porn sites.
If you are a reseller for this group, you should have more paper than just the website's terms of use and privacy policy -- those are all generally facing the site's end users and are not really intended for its main customers.
Look for the terms and conditions around the hosting agreement. If they don't say anything, you can always go back to the hosting company to negotiate alternate terms.
Recognize, however, that even if you can get them legally bound not to look into your files w/o your authorization, as a practical matter, this is hard to enforce.
Yup. But, isn't that exactly what Lowes did when Home Depot came along (or, vice versa) and what Microsoft did once they saw Macintosh? The question here isn't whether one is a "rip off" of the other -- it's whether one is infringing any rights of the other. And, that's what the court case will find out.
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If a sizeable portion of the population holds to an "uninformed" side, then you had better teach that, too. Heck, I try to teach my kids what Democrats think and we have a great discussion about it.
Don't make more of this than what it is. Of COURSE you want both taught in school. We still study the theory that the earth is flat and show how that doesn't jibe with modern scientific understanding. What's wrong with talking about creationism and where it differs with modern scientific understanding?
She was not saying "Teach this as fact."
You realize, of course, that Obama is seriously anti-trade -- it will be harder for you to get work in the US, not easier. And, as a result, it will be harder for people in the US to get work in Canada.
Unfortunately, there is a xenophobic undercurrent in US politics. That's why mentioning Obama's middle name (Hussein) is verboten, why immigration is as big of an issue as it is, and why the Democrats are running away from trade deals.
That's rather conclusory -- if Psystar wins, it will be partially because the court agrees with you on this. But, they may not win -- there have been cases on both sides.
There is a decent argument that the license is binding. First of all, it's not possible to "reject the license" and then install the software. Assuming that Apple's install procedure works like most procedures, the first thing the install procedure does is bring up the license, and it won't install the software until you accept it.
Now, you can make various arguments that even if you click "accept," the license isn't binding. Take, for example, lack of consideration -- you already have the right to install and run it, so the license doesn't give you anything new.
The other argument is basically the ProCD argument -- you knew when you bought the software that (1) there was a license and (2) Apple only wanted to sell the software to people who bought the license. By buying the software, knowing that it was subject to the license, you accepted the license.
So, as a lawyer, I don't consider the GPL to be written in "legalese." It's just not written very well, especially v2.
When drafting a document, a lawyer tries to make sure that it can only be read one way--his. Often lawyers drop into the habit of "legalese" to do this. And, as a result, that document may be difficult for non-lawyers to understand. But, that "legalese" is rarely required.
So, here's an example of the GPLv2 poor drafting:
So, what does the part after the colon refer to? Does it mean that "any derivative work under copyright law" is the same thing as "a work containing the Program or a portion of it"? If so, then it's just plain wrong, because those are two different things.
So, if you look toward the end of Section 2, where the GPL uses the expression "work based on the Program," is it talking about "derivative works" or the broader category that includes "works containing the program"? The next-to-last sentence in Section 2 now talks about "collective works" for the first time -- where did that come from?
Preparing a good contract is a lot like writing code cold without having the chance to debug it. You spend a lot of time making sure (1) that it does exactly what you want and (2) that your audience will be able to read it. Considering that similarity, I'm surprised at how many "bugs" the GPL has.
Are you sure about that? I suspect that a number of them don't serve anything.
Well, that's really up to the industry. The recording industry would have to decide amongst itself how to divvy up the proceeds. Presumably, if an artist felt that he/she wasn't getting enough, she/she could opt out. Naturally, you can see some issues coming up here where fading divas put up hissy fits when their royalties drop.
A voluntary license doesn't cover everybody and so can be problematic -- you would have to check every time to see if your artist was on the list. There's also the problem of what happens when your artist drops off the list.
The other question, which remains unanswered is what does he mean by "access" -- do they give you a site to download the music, or is this basically "we can't sue you for copying this list"? (If they give you a site to download the music, then why do they want the ISPs to collect the money?)
Hmm.... Democrats oppose balance on the Internet, where blogs lean to the left, but support it on the radio, where talk radio leans to the right.
You've pointed out a great example of what I was talking about -- nowhere on that page does it say "You can only use this on Macintosh computers" or make any reference to a license agreement.
Actually, no. As contemplated by the ProCD court, your right to return the software comes from the UCC, contract law and the rules around offer and acceptance, not from the agreement itself. The License could say "You cannot return this software to the store" and you still would be able to, because doing so negates the entire license.
In answer to your last question about why Amazon isn't bound, the answer is because Amazon and Apple have a separate agreement. If both Apple and Amazon agree that the EULA doesn't apply to Amazon's resale, then it doesn't apply. Also, the Apple EULA, by its terms, probably only applies only to end users.
I agree that the whole mess is unsatisfactory. There was a move in the 1990's to standardize the law around this sort of thing through a uniform law that the states were all going to adopt, known as UTICA. I seem to recall that it was only adopted in Virginia and maybe one other state.
You have the right to return it if you don't accept the license agreement. Whether the store wants to make it easy is another matter. This is a case whether common practice differs from the legal requirement.
I've read the case, and it was absolutely "tried properly." The Court's view (in response to your original point) was that it would be silly to require the EULA to be printed on the outside of the box when there's potentially a lot more useful things that can be put there.
An interesting situation comes up when companies don't put any indication of an EULA on the packaging at all -- if my recollection of the case is correct, it was premised on the box saying something like "subject to the terms contained in the EULA." If you don't have at least that sort of minimum statement on the box, then it's harder to claim that you should be bound by the EULA. (Of course, just about all software is accompanied by a license agreement, so that's not a particularly strong case.)
Note that one of the problems is tiered licensing , which is especially common in enterprise software. Basically, a company sends out one disk and says "If you're going to run this on a desktop, the price is $XXX. If you're going to run this on a typical server, the price is $XXX and if you're going to run this on a huge multi-core enormous server, the price is $XXX." If you actually buy a copy of the software (instead of just licensing it), then you could pay the desktop price and install it on the ginormous server.
If you can touch ram (and, I can -- I installed some in my computer a few weeks ago) or a hard drive, then it's sufficiently tangible. The fixation requirement just means that it has to be accessible for more than transitory duration.
Well, you've just given the argument for the rulings that say that you do have that right. Basically, those say that if you get a copy and you don't have to give it back, then you own it.
The other side says that if you get a copy and agree that you don't own it, then you don't own it. And, that agreement comes in the license "agreement" which is binding because you bought the software knowing that it was covered by a license agreement.
So that's one of the reasons I think the GPL could have used a little more editing by a good lawyer. Those sections are clearly intended to apply to all uses, but because of Section 9, there's a decent argument that they don't.
When you buy software knowing that it is covered by a license agreement the seller intends to apply to you, the sale itself is conditioned upon your acceptance of the license. See http://en.wikipedia.org/wiki/ProCD_v._Zeidenberg .
For the most part, the GPL only covers distribution. But, there are some terms that cover the end user -- see, for example, sections 15 and 16 of GPL v3. These are VERY much the sort of thing that EULAs are intended to cover.
Eeehhh....
In-memory copies count as copies. But, if you are the owner of a copy of computer software, then you can (under 17 U.S.C. 117(a)) copy it into computer memory for the purpose of running it without infringing.
The reason that EULAs are important is because software publisher asserts that you are not an owner of a copy. And, if you're not an owner of a copy, then Section 117(a) doesn't apply. There have been court decisions on both sides of this one.
As for your arguing about temporary buffer copies, those aren't "fixed" under the copyright act and thus are not infringing copies. (See the recent Cablevision case for a longer discussion). Your other cases (such as store-and-forward email) are cases either of an implied license or where there was no volitional act. (You're not liable if somebody else causes your computer to make a copy and you don't even know that copy exists.)
Copyright Infringement actions are decided under strict liability -- the "intent" of the person doing the copying doesn't matter.
Pfft. The requirement that you police other people's use of your logo does not mean that you have to police every single use. There is fair use of trademarks, and this use seems to be flatly in the middle of that. Anybody viewing the video is absolutely not going to think that it came from the IOC.
I would like to believe that this is true. But, the Republicans have shown themselves to be just as willing to let lobbyists write laws as the Democrats have. The principled Republican Party of 1994 doesn't exist any more.
So, this all basic economic theory and I must be doing a bad job of explaining it. Let me try again:
Suppose, as you say, MS sets up a distributor in, say France, that sells MS products at a huge markup over MS's prices -- at what ever that point is just before "returns start decreasing." (the "monopoly price"). MS sees that huge markup and thinks to itself, "I can take some of that." Now, it has two options:
1. It can raise the prices that it charges to the distributor. The distributor cannot raise its own prices in return, because if they do, returns will start decreasing -- they're already charging the monopoly price.
2. It just buys the distributor or sets up a subsidiary company that is its local distributor. And, now Microsoft gets its original profits AND the profits that the distributor was making.
In either case, the profits go back to Microsoft.
The only time when this doesn't happen is if the Distributor just charges some small margin over its cost -- if the distributor starts making too much, Microsoft will react and take that extra profit away.
Now, in reality, neither (1) nor (2) ever happens because Microsoft has already priced its software high enough that the distributor doesn't ever get the chance to make that monopoly profit to begin with.
"within the country, the sole distributor . . . pumps the price up because he has no competition to drive his prices down."
I think you're missing my point -- what stops MICROSOFT from doing this, either in the US (by jacking up the price that it charges distributors) or in foreign markets (by jacking up the price that it charges to the foreign distributor)?
If there is indeed a monopoly, there is only one monopoly profit to be made, and I see no reason why Microsoft would let the distributor keep that profit when Microsoft could claim it for itself.
Suppose that the European distributor appointed a single sub-distributor for, say Western Europe, who appointed a single sub-distributor for France. Would they each be able to pump up prices? Of course not. After all, each distributor and sub has a monopoly.
Pfft. Every company has a monopoly in its own product. Microsoft is the sole source of its goods in the US. If it sells a distributorship in another country, that distributor only steps into Microsoft's shoes.
The reason software prices are higher in Europe is that price and cost are not related. Europeans have more money (when converted into dollars) and can thus spend more of that money on software. Supply and Demand at work.
My position is that this is not distribution. You're still liable for copyright infringement, however, because you created the copies.
The copyright statute differentiates between distributing a work and offering to distribute it. In 17 U.S.C. 101, for example, "publication" is defined as either actual distribution or "offering to distribute." The two are not the same thing.
A copyright holder has several exclusive rights -- create copies, distribute a work, public performance, etc.... There is no exclusive right to "offer to distribute." There is only actual distribution.
That's my view -- the RIAA has a different view and courts have held both ways.
Bill Patry, copyright scholar, has a good post on the topic at his blog: http://williampatry.blogspot.com/2008/04/recent-making-available-cases.html
Forget about the number -- it's whether she distributed any at all.
The RIAA's claim is based on the idea that if you make a file available, you are distributing it, regardless of whether you actually distributed it anybody.
The problem with the RIAA's claim is that it make distributors out of everybody who happens to have a song on a shared folder, even if an official "p2p" network isn't involved. Consider Windows file sharing: if "My Documents" on your dorm computer is readable by the universe, congratulations -- you now owe the RIAA thousands of dollars. Remember, it isn't a question of whether anybody actually copied the song, or even of whether you intended to distribute it.
Consider this even more bizarre situation: Your kid installs p2p software on the family computer, sharing a directly called "music," that includes only songs he wrote & recorded. Later, you decide to rip your CD collection and, not knowing that there's p2p software, you stick it in "music." Now, you owe the RIAA a bunch of money.
Your rights here are largely determined by the contract between you and the hosting company. Typically, these things will list the conditions under which they will access private data stored on their server. If the contract is silent, then at best they're probably just limited to not selling data to your competitors or posting your naked pictures to porn sites.
If you are a reseller for this group, you should have more paper than just the website's terms of use and privacy policy -- those are all generally facing the site's end users and are not really intended for its main customers.
Look for the terms and conditions around the hosting agreement. If they don't say anything, you can always go back to the hosting company to negotiate alternate terms.
Recognize, however, that even if you can get them legally bound not to look into your files w/o your authorization, as a practical matter, this is hard to enforce.
Yup. But, isn't that exactly what Lowes did when Home Depot came along (or, vice versa) and what Microsoft did once they saw Macintosh? The question here isn't whether one is a "rip off" of the other -- it's whether one is infringing any rights of the other. And, that's what the court case will find out.