Yeah, so I didn't say that the copyright infringement claim was particularly strong. Do note, however, that most software publishers would claim that when you buy a box with some computer media in it, you are really just buying a license and not a copy of the computer program.
The stronger claim, I think, is the tortious interference claim -- MDY's defense that Blizzard is misusing its copyright is really a stretch.
The theory is that Blizzard allows the user to load World of Warcraft into his computer only if they follow the EULA, including the part about not using programs like WoWGlider. By using WoWGlider, the user is not following the EULA, so they do not have permission to run WoW. Since running the program makes a copy of it in computer memory and since the user does not have permission to do so, that copy in memory is an infringement.
In that way, it's just like the GPL: "You do not have to follow this license, but nothing else gives you permission to use the software."
The claim against MDY is of vicarious infringement -- the company isn't doing the infringing itself, but it is helping others to do so, and profiting from it.
In all but the tiniest minority of those cases, though, there are Americans to fill those spots. Think about it: what would a company do if the number of H1B visas suddenly went to zero? (Let's ignore offshoring the job itself, which I'll admit is one of the probably outcomes.) Another way of asking the question is: what do all those companies do when the don't get the H1B visa? Well, the company would search harder for potential candidates, would hire suitably qualified people from their competitors and would find people who aren't quite trained for the job, and train them. All those alternatives have costs. But, as long as the cost of the H1B visa is lower, nobody is going to expend those training and search costs.
An auction actually helps determine where the tipping point is -- the point at which the cost of the H1B visa is more than the search and training costs. If the auction price is low, that's a good indication that companies are not willing to spend much effort in training and recruitment, preferring to turn to H1B visas instead. But, if it's high, that means that they're expending a lot of money doing training and recruitment, and it may be a good policy to increase the number of H1B visas to reduce that cost.
Wendy's treading on thin ground. I can't actually see the clip she put up (because, well, it got taken down), but the picture you click on to show the clip contains some clearly protectable content -- it's an image of a football player with a score graphic superimposed in front of it. There's a lot of stuff here that's subject to copyright: the design of the graphic; the camera angle and zoom; if there's audio, that audio. The copyright statement alone may have some protected content as well -- the choice of fonts and colors, the spacing, the background, the decision of how long to leave it up on the screen and so on.
There's a sibling post that gets this a little off: facts are free, but any bit of creativity in expressing the facts is protected. So, for example, a phone book is not protected since it's just a straight alphabetical listing of facts. But, a map is, since the designer has to choose what level of detail to put on the map. A still frame from a security camera probably is not copyrighted, since it lacks any creativity. But, a still frame from the evening news is copyrighted -- the design of the set, the colors, the choice of camera angle are creative.
Here's an example of why you can't go solely by the "larger work/smaller work" dichotomy: consider an anthology of, say, the 1000 best political cartoons of 2007. Unless the publisher got permission, that's 1000 copyright infringements, even though it's a significantly larger work.
I hope you realize that you just restated exactly what I said in my original post. So indeed, you are agreeing with me. If you don't believe me, go back to my original post and read it again.
I don't think I am agreeing with your original post. You said that "The length or exact portion of the copyrighted material does not matter." In fact, it does matter, as the amount taken is one of the factors to consider in whether a use is fair.
As you mention, there are some fair uses, such as criticism, which hinge on what you add. But, there are other fair uses where what you add is irrelevant. (The Betamax case, for example).
In fact, there are other situations where adding (or taking away) something actually damages your fair use claim. The example I remember was the designer who created an infringing derivative work by mounting artwork on ceramic tiles.
The point is that Walt Mossberg was right: fair use is a bit nebulous, and could stand to be clarified. I suggest, though, that they should not throw out hundreds of years of fair-use analysis (the Marsh case you cited is from 1841), but should probably add some safe-harbors, along the lines of "If you do this XXX, it's fair."
You're comparing it to the wrong work. If X is the original copyright work, Y is the potentially infringing work, and A is the portion of the original that is used, this factor is concerned with A/X, not A/Y.
That said, especially in a transformative use, a court will pay attention to whether you took more than you needed to. In parody cases, for example, you have to be able to take enough of the original to remind people of the original, but you can't easily copy the entire thing and claim a parody.
Well, you're wrong. Section 107 of the 1976 Copyright act lists out four non-exclusive factors to be used in determining whether a use is fair. One of them is the "amount and substantiality of the portion used in relation to the copyrighted work as a whole." It's not dispositive, but it is one of the factors courts consider.
Adding value to the original work will help on a fair use claim, but it's not essential. Heck, in the Sony Betamax decision (1984), the Supreme Court thought that time-shifting--copying an entire show--was a fair use. You're sure not adding anything there. But, a magazine's articles that included excerpts of a book by Gerald Ford about the Nixon Presidency was not a fair use.
Heck, you don't even hit fair use in that case. Fair use is a doctrine where we allow uses which otherwise would be infringing. Watching DVDs through your computer onto your TV isn't any more infringing than watching them through a DVD player.
They can't sell it off until they move the current transmitters off. The receivers don't matter at all.
Basically, this is the government spending a billion dollars so that the few people in the US who still watch over-the-air TV on old TVs can still watch it in January 2009. (Recent TVs have converters built in; most people get their TV over Cable and Satellite.) Ironically, the people in that situation are probably the ones who care the least about their TV.
Why is it the government's job to make sure people can still watch TV when the television converts to a new standard, but it wasn't the government's job to buy a new CD player for everybody when the CD took over from Vinyl records?
Sure, they'll raise more than $1B money by auctioning off the spectrum. But, the question ought to be whether buying TV converters is the best use of that $1B. Why not use it to combat global warming, fund ethanol research, help find a cure for AIDS or reform the patent system?
The reason the federal deficit is so huge is that most people don't bat an eye at this sort of spending.
The problem with this argument is that there is no inherent value in what a programmer does -- the value is completely dependent on what the market is willing to bear, which depends on the cost of production. For example, if MS did what I suggested, MS Vista might go up to $400 a pop, and fewer copies would be sold.
My point was that the "We can't find any qualified Americans to do these jobs, so we're forced overseas or to hire H1B visaholders" argument implies that they would hire Americans if only they could. But, they can, just at a higher price than going overseas. So, the argument is about pricing -- they're really saying "it's more cost effective for us to hire H1B visaholders or go overseas than it is to hire Americans."
Frankly, they're right: Microsoft could do what I suggest, but their higher prices would kill their market share. My point is that they should be honest about it, not that they shouldn't do it.
If Microsoft wanted, it could announce that it is going to start their engineers at $200K/year and it would get more than enough qualified applicants. Or, it could hire marginally qualified applicants and train them in the technologies it wants. In fact, were Microsoft to start paying that rate, it would not take long before the market were flooded with qualified engineers. More people would switch to Computer Science and more universities would open up comp. sci departments.
The problem is not a shortage of American high-tech labor; it's a shortage of cheap American high-tech labor. Gates' concern is not that he can't find engineers in the U.S.; it's that it's cheaper for him to hire engineers elsewhere.
I suggest that the reason that fewer people are going into Computer Science is that they see how software companies treat their engineers. How many software engineers lost their jobs between 2001 and 2004? If the market for good engineers were as tight as Bill Gates suggests, those people should have been gobbled up in an instant. Heck, companies would have been hiring them, knowing that they'd be needed eventually.
First of all, a 1941 law review article is awfully slim authority for the proposition that people cannot waive statutory rights. Here's a counter-point: the contractual waiver to a jury trial or even to a trial at all (in the US, a contractual provision specifying arbitration is legal.) In a corporate context, stockholders can waive their statutory right to notice. Heck, many liability releases are just waivers of statutory rights. There are also a variety of rights which cannot be waived--the minimum wage, for example.
Sorry for the US-centric post. I don't know anything about how Canada deals with EULA enforceability or privacy law. I do suggest that the US EULA rule is sound: if you are given notice that the manufacturer only wants to deal with you on certain terms and you are given the chance to reject those terms, then you ought to be bound when you accept them.
I have also seen overreaching employment agreements which contain unenforceable clauses. But, some are enforceable -- I was thinking of clauses that allow, for example, the employer to go through your email.
(1) Yes, EULAs are generally enforceable. All you need is the chance to say 'No' before being bound. Heck, check http://yro.slashdot.org/article.pl?sid=05/01/20/13 34256/ (2) To what statute are you referring? To my knowledge, there's no general reason you can't sign away privacy rights. (There are contexts where you can't, but in general, you can. Heck, check your employment agreement -- you may have signed them away there!) (3) Statute does not always trump contract. People often waive statutory rights in a contract.
Attribution is different from copyright. For example, say you have a novel scientific idea which you write about in some scientific journal and that I read your article and publish my own article, using your idea without attribution.
Now, what I've done would reasonably upset you, but there is no law (at least in the US) that requires me to attribute your ideas to you. In fact, under those facts, I completely own the copyright in my article and you have no legal remedy. Now, there may be repercussions--I may lose my job or be publicly disgraced--but the question is ownership of my work, which is not affected by such repercussions.
The ownership of data is presumably a case-by-case thing that depends on what the data is and how it was acquired.
For example, Google does not own the copyright on out-of-copyright books that it scans in (nobody does, by definition.) At best, it might own the copyright on the scan that it did, but that's really unlikely--copyright protects creative expression and a straight scan doesn't add any.
However, they probably have some rights under unfair competition law because they have gone through a lot of work acquiring all this data and it would be unfair for somebody else to piggyback on that work to compete with them.
Recognize also that many of the "Hubble Pictures" you see are colorized versions of raw data that incorporates non-visible parts of the EM spectrum, assigning colors to things you can't see with your eyes. That assignment of colors to create something pleasing to the eye is certainly creative expression. So, if Google takes the raw data and does that color assignment itself, well, the result is theirs.
(Note: as has been mentioned by others, this is a case out of Australia. Nevertheless, I'm only going to talk about US copyright principles, which I think would still apply.)
I can't get to the sites at the moment, but note that one does not need to actually copy text or graphics to infringe. In general, you need some form of creative authorship. A creative layout is protected, even if what fills it in is completely different. Decisions about what types of things to put into that layout are also protected. Note, though, that the farther away you get from rote copying, the less protection is afforded to the work.
Consider, for example, Harry Potter: anybody can write a book about teenage wizards at a magic school in the U.K. -- that's just an unprotected idea. Under *Copyright law*, you can even use the name "Harry Potter." (But, you'd run into trademark problems.) But, once you start filling in plot and setting details with corresponding details from a Harry Potter book, you begin to cross the line into protected content, even if you don't actually use J.K. Rowling's sentences.
(Note that copyright and plagiarism are different.)
a technological measure "effectively controls access to a work" if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
Under section 1201(b) of the DMCA, offering to the public a "technology . . . that (A) is primarily designed . . . for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title."
Section 512(c) is the part that specifies the notice-and-takedown provisions, but it appears to me that it only refers to infringing material.
Note the difference: a circumvention device is not infringing material; it can be used to infringe, but unless it contains copyrighted code, it does not infringe by itself.
Now, naming something 'BackupHDDVD' is probably enough to show its primary design. So, just like DeCSS, it's a circumvention measure. A takedown notice is just the wrong method to bring it down.
There are two right involved here, the distribution right and the copy right -- a copyright owner has, among other rights, the right to copy his work and the right to distribute his work. If somebody else does either of these things, that person has infringed the copyright. You do not need to copy a work to infringe it.
In any case, who "does the copying" is not as clear as you make it out to be. Your computer is certainly taking part in the copying process. Sure, it's only because somebody else told it to, but "he told me to do it" has never been a valid defense. Plus, in doing the transmission, your computer is making internal copies in memory and in buffers -- these might be enough of a copy to withstand the copyright act. (Personally, I don't think so, but it remains an open issue in copyright law.)
So, let's say I make 100 copies of a CD (ignoring the fact that doing this is already infringement), put them on a table outside the local grocery store and then walk away. Is this distribution? Or, do I need to actually go through the step of physically handing them to people?
The answer is to the question posed in the OP is "Sometimes, making available is distribution." And, sometimes it's not. It turns on the specific facts of the case.
If I had to make a call, I'd say that making it available through bittorrent is distribution, but just putting it on a shared folder is not (unless I expect others to copy from there.) At one level, they're both just ways of sharing files. But, a lot more people will see your bittorrent site than will see your shared folder.
Let's add to that a little bit -- Microsoft is having trouble finding enough qualified applicants at a price it's willing to pay. You could certainly announce that you will be starting engineers off at $200k and get all the "qualified applicants" you want within a few days. Or, you could take applicants who do not have the skill set you want and train them. There are lots of alternatives.
The "extra hassle" has a dollar figure attached to it. If that dollar figure is less than the dollar figure of the alternatives, then you go through the extra hassle. If not, you take the alternative.
Argh. Push your middle finger into the fleshy part of your palm by your thumb-- that's how he looked. I have no idea what happened to the fingertip that came off -- it was probably just thrown away.
Since at least the civil war, if patients have portions of their extremities cut off, doctors have been sewing the severed tip back into good flesh, so the extremity can regrow. An acquaintance lost about 1/2 an inch off the tip of his finger. The surgeon cut a slit in the palm of his hand, stuck the finger in there and sewed it back up. A few months later, presto! new finger.
If the buyer knew or suspected that Amazon's system was messed up and took advantage of it, that's probably fraud. If the buyer was innocent and actually believed that the prices were correct, you have to ask how reasonable that belief was, and whether Amazon typically has hidden discounts would play a lot into that analysis. If the buyer didn't notice, intended to buy it at the correct price and was just mischarged, then they probably have a sale contract at the correct price and they have to pay up.
The interesting thing is what happens to the guy who noticed the error and used it to get, say, 100 box sets.
This is one reason to use those credit cards where you can get a one-time-use number. If you want to fight Amazon, it's easier to do it when they don't have a charge on your card than when they do. It's also a reason not to use debit cards online -- it's harder still when they've already pulled the money out of your bank account.
Slashdot Mirror
Yeah, so I didn't say that the copyright infringement claim was particularly strong. Do note, however, that most software publishers would claim that when you buy a box with some computer media in it, you are really just buying a license and not a copy of the computer program.
The stronger claim, I think, is the tortious interference claim -- MDY's defense that Blizzard is misusing its copyright is really a stretch.
The theory is that Blizzard allows the user to load World of Warcraft into his computer only if they follow the EULA, including the part about not using programs like WoWGlider. By using WoWGlider, the user is not following the EULA, so they do not have permission to run WoW. Since running the program makes a copy of it in computer memory and since the user does not have permission to do so, that copy in memory is an infringement.
In that way, it's just like the GPL: "You do not have to follow this license, but nothing else gives you permission to use the software."
The claim against MDY is of vicarious infringement -- the company isn't doing the infringing itself, but it is helping others to do so, and profiting from it.
In all but the tiniest minority of those cases, though, there are Americans to fill those spots. Think about it: what would a company do if the number of H1B visas suddenly went to zero? (Let's ignore offshoring the job itself, which I'll admit is one of the probably outcomes.) Another way of asking the question is: what do all those companies do when the don't get the H1B visa? Well, the company would search harder for potential candidates, would hire suitably qualified people from their competitors and would find people who aren't quite trained for the job, and train them. All those alternatives have costs. But, as long as the cost of the H1B visa is lower, nobody is going to expend those training and search costs.
An auction actually helps determine where the tipping point is -- the point at which the cost of the H1B visa is more than the search and training costs. If the auction price is low, that's a good indication that companies are not willing to spend much effort in training and recruitment, preferring to turn to H1B visas instead. But, if it's high, that means that they're expending a lot of money doing training and recruitment, and it may be a good policy to increase the number of H1B visas to reduce that cost.
Wendy's treading on thin ground. I can't actually see the clip she put up (because, well, it got taken down), but the picture you click on to show the clip contains some clearly protectable content -- it's an image of a football player with a score graphic superimposed in front of it. There's a lot of stuff here that's subject to copyright: the design of the graphic; the camera angle and zoom; if there's audio, that audio. The copyright statement alone may have some protected content as well -- the choice of fonts and colors, the spacing, the background, the decision of how long to leave it up on the screen and so on.
There's a sibling post that gets this a little off: facts are free, but any bit of creativity in expressing the facts is protected. So, for example, a phone book is not protected since it's just a straight alphabetical listing of facts. But, a map is, since the designer has to choose what level of detail to put on the map. A still frame from a security camera probably is not copyrighted, since it lacks any creativity. But, a still frame from the evening news is copyrighted -- the design of the set, the colors, the choice of camera angle are creative.
Here's an example of why you can't go solely by the "larger work/smaller work" dichotomy: consider an anthology of, say, the 1000 best political cartoons of 2007. Unless the publisher got permission, that's 1000 copyright infringements, even though it's a significantly larger work.
I don't think I am agreeing with your original post. You said that "The length or exact portion of the copyrighted material does not matter." In fact, it does matter, as the amount taken is one of the factors to consider in whether a use is fair.
As you mention, there are some fair uses, such as criticism, which hinge on what you add. But, there are other fair uses where what you add is irrelevant. (The Betamax case, for example).
In fact, there are other situations where adding (or taking away) something actually damages your fair use claim. The example I remember was the designer who created an infringing derivative work by mounting artwork on ceramic tiles.
The point is that Walt Mossberg was right: fair use is a bit nebulous, and could stand to be clarified. I suggest, though, that they should not throw out hundreds of years of fair-use analysis (the Marsh case you cited is from 1841), but should probably add some safe-harbors, along the lines of "If you do this XXX, it's fair."
You're comparing it to the wrong work. If X is the original copyright work, Y is the potentially infringing work, and A is the portion of the original that is used, this factor is concerned with A/X, not A/Y.
That said, especially in a transformative use, a court will pay attention to whether you took more than you needed to. In parody cases, for example, you have to be able to take enough of the original to remind people of the original, but you can't easily copy the entire thing and claim a parody.
Well, you're wrong. Section 107 of the 1976 Copyright act lists out four non-exclusive factors to be used in determining whether a use is fair. One of them is the "amount and substantiality of the portion used in relation to the copyrighted work as a whole." It's not dispositive, but it is one of the factors courts consider.
Adding value to the original work will help on a fair use claim, but it's not essential. Heck, in the Sony Betamax decision (1984), the Supreme Court thought that time-shifting--copying an entire show--was a fair use. You're sure not adding anything there. But, a magazine's articles that included excerpts of a book by Gerald Ford about the Nixon Presidency was not a fair use.
Heck, you don't even hit fair use in that case. Fair use is a doctrine where we allow uses which otherwise would be infringing. Watching DVDs through your computer onto your TV isn't any more infringing than watching them through a DVD player.
Pfft.
They can't sell it off until they move the current transmitters off. The receivers don't matter at all.
Basically, this is the government spending a billion dollars so that the few people in the US who still watch over-the-air TV on old TVs can still watch it in January 2009. (Recent TVs have converters built in; most people get their TV over Cable and Satellite.) Ironically, the people in that situation are probably the ones who care the least about their TV.
Why is it the government's job to make sure people can still watch TV when the television converts to a new standard, but it wasn't the government's job to buy a new CD player for everybody when the CD took over from Vinyl records?
Sure, they'll raise more than $1B money by auctioning off the spectrum. But, the question ought to be whether buying TV converters is the best use of that $1B. Why not use it to combat global warming, fund ethanol research, help find a cure for AIDS or reform the patent system?
The reason the federal deficit is so huge is that most people don't bat an eye at this sort of spending.
The problem with this argument is that there is no inherent value in what a programmer does -- the value is completely dependent on what the market is willing to bear, which depends on the cost of production. For example, if MS did what I suggested, MS Vista might go up to $400 a pop, and fewer copies would be sold.
My point was that the "We can't find any qualified Americans to do these jobs, so we're forced overseas or to hire H1B visaholders" argument implies that they would hire Americans if only they could. But, they can, just at a higher price than going overseas. So, the argument is about pricing -- they're really saying "it's more cost effective for us to hire H1B visaholders or go overseas than it is to hire Americans."
Frankly, they're right: Microsoft could do what I suggest, but their higher prices would kill their market share. My point is that they should be honest about it, not that they shouldn't do it.
If Microsoft wanted, it could announce that it is going to start their engineers at $200K/year and it would get more than enough qualified applicants. Or, it could hire marginally qualified applicants and train them in the technologies it wants. In fact, were Microsoft to start paying that rate, it would not take long before the market were flooded with qualified engineers. More people would switch to Computer Science and more universities would open up comp. sci departments.
The problem is not a shortage of American high-tech labor; it's a shortage of cheap American high-tech labor. Gates' concern is not that he can't find engineers in the U.S.; it's that it's cheaper for him to hire engineers elsewhere.
I suggest that the reason that fewer people are going into Computer Science is that they see how software companies treat their engineers. How many software engineers lost their jobs between 2001 and 2004? If the market for good engineers were as tight as Bill Gates suggests, those people should have been gobbled up in an instant. Heck, companies would have been hiring them, knowing that they'd be needed eventually.
First of all, a 1941 law review article is awfully slim authority for the proposition that people cannot waive statutory rights. Here's a counter-point: the contractual waiver to a jury trial or even to a trial at all (in the US, a contractual provision specifying arbitration is legal.) In a corporate context, stockholders can waive their statutory right to notice. Heck, many liability releases are just waivers of statutory rights. There are also a variety of rights which cannot be waived--the minimum wage, for example.
Sorry for the US-centric post. I don't know anything about how Canada deals with EULA enforceability or privacy law. I do suggest that the US EULA rule is sound: if you are given notice that the manufacturer only wants to deal with you on certain terms and you are given the chance to reject those terms, then you ought to be bound when you accept them.
I have also seen overreaching employment agreements which contain unenforceable clauses. But, some are enforceable -- I was thinking of clauses that allow, for example, the employer to go through your email.
(1) Yes, EULAs are generally enforceable. All you need is the chance to say 'No' before being bound. Heck, check http://yro.slashdot.org/article.pl?sid=05/01/20/13 34256/
(2) To what statute are you referring? To my knowledge, there's no general reason you can't sign away privacy rights. (There are contexts where you can't, but in general, you can. Heck, check your employment agreement -- you may have signed them away there!)
(3) Statute does not always trump contract. People often waive statutory rights in a contract.
Attribution is different from copyright. For example, say you have a novel scientific idea which you write about in some scientific journal and that I read your article and publish my own article, using your idea without attribution.
Now, what I've done would reasonably upset you, but there is no law (at least in the US) that requires me to attribute your ideas to you. In fact, under those facts, I completely own the copyright in my article and you have no legal remedy. Now, there may be repercussions--I may lose my job or be publicly disgraced--but the question is ownership of my work, which is not affected by such repercussions.
The ownership of data is presumably a case-by-case thing that depends on what the data is and how it was acquired.
For example, Google does not own the copyright on out-of-copyright books that it scans in (nobody does, by definition.) At best, it might own the copyright on the scan that it did, but that's really unlikely--copyright protects creative expression and a straight scan doesn't add any.
However, they probably have some rights under unfair competition law because they have gone through a lot of work acquiring all this data and it would be unfair for somebody else to piggyback on that work to compete with them.
Recognize also that many of the "Hubble Pictures" you see are colorized versions of raw data that incorporates non-visible parts of the EM spectrum, assigning colors to things you can't see with your eyes. That assignment of colors to create something pleasing to the eye is certainly creative expression. So, if Google takes the raw data and does that color assignment itself, well, the result is theirs.
(Note: as has been mentioned by others, this is a case out of Australia. Nevertheless, I'm only going to talk about US copyright principles, which I think would still apply.)
I can't get to the sites at the moment, but note that one does not need to actually copy text or graphics to infringe. In general, you need some form of creative authorship. A creative layout is protected, even if what fills it in is completely different. Decisions about what types of things to put into that layout are also protected. Note, though, that the farther away you get from rote copying, the less protection is afforded to the work.
Consider, for example, Harry Potter: anybody can write a book about teenage wizards at a magic school in the U.K. -- that's just an unprotected idea. Under *Copyright law*, you can even use the name "Harry Potter." (But, you'd run into trademark problems.) But, once you start filling in plot and setting details with corresponding details from a Harry Potter book, you begin to cross the line into protected content, even if you don't actually use J.K. Rowling's sentences.
(Note that copyright and plagiarism are different.)
The Home Recording Rights Coalition has a blurb on it at http://www.hrrc.org/index.php?id=133&subid=2. The language comes from the WIPO treaty that the DMCA implemented.
In any case, the DMCA itself says what it means:
a technological measure "effectively controls access to a work" if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
Under section 1201(b) of the DMCA, offering to the public a "technology . . . that (A) is primarily designed . . . for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title."
Section 512(c) is the part that specifies the notice-and-takedown provisions, but it appears to me that it only refers to infringing material.
Note the difference: a circumvention device is not infringing material; it can be used to infringe, but unless it contains copyrighted code, it does not infringe by itself.
Now, naming something 'BackupHDDVD' is probably enough to show its primary design. So, just like DeCSS, it's a circumvention measure. A takedown notice is just the wrong method to bring it down.
There are two right involved here, the distribution right and the copy right -- a copyright owner has, among other rights, the right to copy his work and the right to distribute his work. If somebody else does either of these things, that person has infringed the copyright. You do not need to copy a work to infringe it.
In any case, who "does the copying" is not as clear as you make it out to be. Your computer is certainly taking part in the copying process. Sure, it's only because somebody else told it to, but "he told me to do it" has never been a valid defense. Plus, in doing the transmission, your computer is making internal copies in memory and in buffers -- these might be enough of a copy to withstand the copyright act. (Personally, I don't think so, but it remains an open issue in copyright law.)
So, let's say I make 100 copies of a CD (ignoring the fact that doing this is already infringement), put them on a table outside the local grocery store and then walk away. Is this distribution? Or, do I need to actually go through the step of physically handing them to people?
The answer is to the question posed in the OP is "Sometimes, making available is distribution." And, sometimes it's not. It turns on the specific facts of the case.
If I had to make a call, I'd say that making it available through bittorrent is distribution, but just putting it on a shared folder is not (unless I expect others to copy from there.) At one level, they're both just ways of sharing files. But, a lot more people will see your bittorrent site than will see your shared folder.
Let's add to that a little bit -- Microsoft is having trouble finding enough qualified applicants at a price it's willing to pay. You could certainly announce that you will be starting engineers off at $200k and get all the "qualified applicants" you want within a few days. Or, you could take applicants who do not have the skill set you want and train them. There are lots of alternatives.
The "extra hassle" has a dollar figure attached to it. If that dollar figure is less than the dollar figure of the alternatives, then you go through the extra hassle. If not, you take the alternative.
Argh. Push your middle finger into the fleshy part of your palm by your thumb-- that's how he looked. I have no idea what happened to the fingertip that came off -- it was probably just thrown away.
Sorry, I guess that wasn't all that clear.
The doctor sewed the end of the finger back into the palm. Effectively, this meant that he went around flashing a gang sign wherever he went.
Since at least the civil war, if patients have portions of their extremities cut off, doctors have been sewing the severed tip back into good flesh, so the extremity can regrow. An acquaintance lost about 1/2 an inch off the tip of his finger. The surgeon cut a slit in the palm of his hand, stuck the finger in there and sewed it back up. A few months later, presto! new finger.
If the buyer knew or suspected that Amazon's system was messed up and took advantage of it, that's probably fraud. If the buyer was innocent and actually believed that the prices were correct, you have to ask how reasonable that belief was, and whether Amazon typically has hidden discounts would play a lot into that analysis. If the buyer didn't notice, intended to buy it at the correct price and was just mischarged, then they probably have a sale contract at the correct price and they have to pay up.
The interesting thing is what happens to the guy who noticed the error and used it to get, say, 100 box sets.
This is one reason to use those credit cards where you can get a one-time-use number. If you want to fight Amazon, it's easier to do it when they don't have a charge on your card than when they do. It's also a reason not to use debit cards online -- it's harder still when they've already pulled the money out of your bank account.