Beware the erroneous implication -- that because wealth is concentrated, the people at the bottom are in worse shape than they were when wealth is not so concentrated.
Consider the graduating class of a typical suburban high school as a closed system (ie ignore everybody not in that class). When they graduate, their individual wealths are usually pretty similar since they have very little in their own name. Now, fast forward 20 years -- some of those people will have been extremely successful, some moderately successful, and some will just be getting by. The relative wealth among the graduates has become skewed, yet each is generally better off than they were upon graduation.
If the pie keeps growing, we don't need to be as concerned with getting a smaller portion of it. In fact, there's a good argument that concentrations of wealth actually help the pie to grow -- when finding a cure for a disease may cost a billion dollars, you need people who have that sort of money and who are willing to put it at risk.
'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.'
(that's 17 U.S.C. 1201(a)(3)(B)). Under your reading, where it says "with the authority of the copyright owner," that means that the copyright owner has to approve the encryption being put in place. Since I don't think Tivo has agreements with all the media companies, I don't think this applies. Also, I don't think Tivo adds anything to the media, so it doesn't have any copyright in it. So, under this section, you're right.
But, there's another section, 17 U.S.C. 1201(b) which says that you cannot traffic in something that circumvents "a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof." And, here, it does that if it "prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title." That's a bit odd to read -- the expression "a right of a copyright owner" is a term of art which basically means "the things only copyright owners can do." The end result is that you cannot traffic in circumvention devices, even if they circumvent something that was not put there with the agreement of the copyright owner, so long as it keeps you from doing something that only the copyright owner can do (i.e. *copying*).
I think that the end result of this odd situation is that people can circumvent the encryption on the Tivo, but can't provide a tool for others to do the same thing.
Really? Care to share a citation for that "Federal law"? I don't believe it exists. Heck, there are a bunch of counter-examples, such as taping a performance in a public park.
As has been covered extensively here, photographing people in public is not a big deal -- if you can see it legally, you can publish a picture of what you saw, within some limits. Does anybody believe that the paparazzi got a release for all the Paris Hilton stone-cold drunk pictures that prove she doesn't wear underwear?
The more interesting question for me is what happens when they take a picture of ART, or something that is the proper subject matter of copyright. If I recall correctly, there was a large silver blob sculpture in St. Louis which the police were preventing from being photographed. Absent fair use, taking a picture of a prominent piece of public art infringes the copyright in that work. (By statute in the U.S., architectural works may be photographed without any problem.)
There is a theory in economics, the "Efficient Market Hypothesis" that effectively says that everything that's publicly known about a company is reflected in that company's market price. Suppose that you *knew for a fact* that SCO's stock would be shooting through the floor -- you would short that stock, which would, if you and several other equally smart people did the same, drive the price through the floor. But, there's a reason that you're not doing that -- you do not know for a fact. After all, there is some small chance that SCO may still win, or that everything will settle. The theory suggests that while a typical investor or analyst may not know that much about what SCO is up against, there are enough out there who do know that they have set the price appropriately.
I'm guessing that few individual investors are invested in SCO any more -- they have long since sold their shares. It's probably mainly held by a small set of very sophisticated investors (hedge funds, for example) who are taking a gamble. And, these players certainly know what the risks are.
I think his point is that if you look at many of the Linux distributions, most include some software that's covered by a license other than ones that RMS would consider "Free." Recall that RMS distinguishes "Free" and "Open Source" software. So, if your favorite Linux distribution includes a copy of the Java VM, you no longer have a completely free OS. Another way this happens is when a hardware manufacturer distributes binary-only drivers.
I'm interested in how you get along without any proprietary software at all -- I've tried and while it was possible to do 99.5% of my job using free software, the other 1/2% was a nightmare. (Thank goodness for VMware.)
Actually, I think his point is that the Linux community doesn't need to move as a herd. In fact, I don't think it can -- most of the Linux Kernel is distributed under a modified GPLv2, from which the "you can use newer versions of the GPL instead of this version" language has been removed.
However, all the GNU stuff, such as the compiler and libraries, is distributed under the standard GPLv2. If those developers decide to move to v3, that could pose something of a problem for Novell. Note that the developers will actually have to provide some new functionality under V3 if they want to pursue this strategy -- they can't retroactively move exiting versions to V3.
While I might agree that global warming is happening and that people may be contributing to it, that's only the first step. The next step is somewhat more difficult: what, if anything, should be done about it?
Significantly slowing human CO2 production will be quite expensive and, from what I've read, will result in some marginal change in world temperatures in 40-50 years time. The question, though is whether spending, say, $600B right now makes a whole lot of sense when you could take the same money and do things like wipe out AIDS in Africa or find a cure for childhood leukemia. At least there is universal agreement that AIDS is rampant in Africa -- there is no such universal agreement about global warming.(*) What if the naysayers are correct?
At some point, you have to do the math -- you have to look at the expected value of the good you're planning to do, discount to present-day and multiply by the likelihood that you're right. Then, you have to compare that to all the other options. It may be that the first $5B you spend on global warming gives you the biggest bang, but after that you should spend it on Cancer or Heart Disease. Heck, it may be that the right thing is to spend the money moving people away from the coast instead of trying to avoid global warming. It could be that the right choice is to do nothing and let people enjoy the next 50 years in their hummers.
But, Sony CAN ALWAYS restrict the supply to create a higher price, at least up to a limit -- the price gets too high and people will just buy an xbox. The more differentiated the product, the easier it is for the producer to do this, and they do it ALL THE TIME.
Sony LOVES this sort of thing. It creates a marketing buzz that Sony never could using traditional advertising. Why do you think they scheduled the Japanese launch a week before the US launch? There are shortages expected in both countries.
I know that Sony has been issuing press releases, blaming the short supply on the unavailability of parts. That's a crock -- it implies that Sony is incapable of managing its supply chain. In reality, EVERY new launch of a game machine deliberately keeps the original supply low for the purpose of generating this buzz. Then, shortly before Christmas, a bunch more are flooded on the market and consumers, surprised that they are even able to find one at all, gobble them up.
Pretend you're a composer and you have just written the piece that is the pinnacle of your career. The New York Times says that your piece is the most musically perfect piece of classical music every played. Orchestras around the world want to perform your work. Do you have a right to charge them for it?
Of course you do. If you didn't, then why would you write the music?
"Copyright" is not a monolithic right -- it is a bundle of individual rights that includes the right to copy, the right to prepare derivative works and, important here, the right to perform the work publicly. Non-public "performances", like playing in your garage or humming, are excluded.
There was a post questioning whether the performer or the bar should be liable. In general, the performer is directly liable for the infringement -- he's performing it publicly. But, because the bar owner could have prevented the infringement, but didn't and instead profited from it, the bar owner is probably liable as well. (It's called 'vicarious infringement.') Mainly for convenience, ASCAP and others typically deal with the bar owners rather than the performers.
They're still liable for the infringement -- the "But, he *told* me it wasn't infringing" defense doesn't exist. The contract may get them out of willful infringement, at least unless they had notice. But, all that does is reduce the high end on damages that they'd have to pay.
There's an argument that rights organizations such as ASCAP and BMI over-compensate the top players and under-compensate the little guys. On a site such as YouTube, you can see how this would happen. Sure, there are lots of clips from Comedy Central or SNL, but there are also lots of clips of Joe-Bob falling off his dirt-bike while trying to jump a bonfire. All of these clips are covered by copyright, but it's likely that Joe-Bob's videographer won't see a dime from a video rights society.
The other thing to be aware of is that a video often impacts other copyrights. So, if the video of Joe Bob jumping over the bonfire happens to include people singing "Kum-By-Ya" in the background, you might have to get the right to transmit the music. If he's clearly wearing a sponge-bob T-shirt while jumping, you might have to get the right to that as well. My personal opinion is that such things are covered by fair use. But, companies (especially video production companies, which naturally want to minimize fair use) go to great lengths to buy the rights to such content and will edit things out if they can't obtain such rights. Duke Law School has a great comic book (?!) about this at http://www.law.duke.edu/cspd/comics/digital.html .
In general, the police cannot do discretionary stops inside the country. They are allowed to stop drivers at stationary drunk-driving checkpoints as long as they use a predetermined selection of cars (every 3rd or 5th or whatever). These stops are OK because (1) they're very limited, (2) they offer no discertion and (3) they are related to road safety. The police are not allowed to randomly search people or their laptops without any suspicion.
At the border, things are different -- the government has a strong interest in controlling what comes in at the border, whether it's drugs, nuisance plants or child pornography. So, there is no 4th amendment right at the border. (I'll admit that keeping kiddie porn out of an International airport seems dumb when they can't keep it off the Internet.) In Canada, for example, they can charge customs on some types of business records, whether they're electronic or paper. (I don't remember the details.)
First of all, you can't quote an amicus brief as proof of the actual law -- these things are often a statement of what people would like the law to be, not what it actually is.
I point you to Computer Associates v. Altai, a 1992 case, (It's online at http://digital-law-online.info/cases/23PQ2D1241.ht m ). A major quote: "if the non-literal structures of literary works are protected by copyright; and if computer programs are literary works, as we are told by the legislature; then the non-literal structures of computer programs are protected by copyright."
There is a split between the 1st and 2nd circuits about how far to carry this, but you can definately protect more than the raw code.
Their first claim is a bit off -- in order to find copying of a computer program, you don't actually need to have copying of the actual code, either source or object. It can be sufficient to copy the structure. So, for example, using somebody else's design documents to generate your own code can still be an infringement, even though you never even SAW their source code.
There's this concept in US copyright law called the "Idea/Expression dichotomy." Basically, this says that you can't protect an idea, but you can protect the expression of that idea. The difficult part is trying to figure out where the boundary exists -- the expression isn't just the written word itself. For example, a book about a boy wizard named Larry Hatter and his two friends at a British school "Pigzits" of witchcraft divided into four houses where they fight a guy called "he who nobody wants to name" with a lot of other similar details would probably infringe J.K. Rowlings' copyright in the Harry Potter character, even if none of the actual language was copied. (Parodies are another matter....)
The same thing goes in code. The fact that there is no actual code duplication does not mean that there isn't any copyright infringement -- it just means that SCO's case is that much harder to prove.
Funny... I re-read the DMCA and didn't find the "It's too much trouble" exception.
I know the position you're taking -- you're effectively arguing that although YouTube might qualify for protection under the the DMCA's "safe harbor" (in 17 U.S.C. 512(c)(1)(A) and (C)), it still have a 512(c)(1)(B) problem, which says it can't make money "directly attributable to the infringing activity," even if it's otherwise inside the safe harbor. But, that cannot mean what you think it means -- the word "directly" HAS to be construed strictly, or it would eviscerate the safe-harbor. ISPs, after all, are IN THE BUSINESS of hosting content for money. So, hosting infringing content gives them money, which would "directly attributable to the infringing activity." Under your construction, therefore, the only ISPs eligible for the safe-harbor are nonprofits!
There are plenty of advertiser-supported services out there for hosting blogs or photos or generic webpages. Nobody thinks that the advertisement invalidates the safe harbor. I don't know why it should be any different when the hosted content is video.
The only thing google really needs to worry about is the infringements that happened at YouTube before google took it over. And, if they're smart, they can isolate that liability to just the youtube subsidiary.
Here's the deal: Somebody posts a copy of a Sienfeld episode on Youtube. It staya up for a while until the Seinfeld owners send a DMCA takedown request to youtube. The only way that a copyright lawsuit will happen here is if youtube doesn't take down the episode. If it does, it's inside a safe harbor created by the DMCA.
You're making a rather odd argument. Of course the police "can" arrest anybody they can actually put handcuffs on. Heck, I "can" arrest anybody also.
The questions are (1) is it legal to do so, and (2) what's the remedy if it's not legal and a cop does it anyway.
And, the answers are:
(1) No. Except for some thin circumstances like protective custody (the drunk tank being a good example), a cop is not allowed to arrest somebody without probable cause.
(2) The remedy is a civil suit against the officer and the department for unlawful arrest and/or false imprisonment. At the extreme end, it might even be kidnapping, which could be prosecuted as a crime.
There are two ways in which Google could end up getting in copyright trouble:
1. Direct infringement: somebody posts a video they don't own and the copyright owner sues. This isn't a problem, so long as YouTube adheres to the DMCA notice-and-takedown provisions. The copyright owner sends an email to google, saying "You have my copyrighted content at www.youtube.com/blah/blah/blah. Please remove it," google removes it and no liability.
2. Vicarious infringement: basically, the Sony Betamax/Grokster doctrine: you have this site up there intending for people to post infringing material. So, even though your site may be used for non-infringing purposes, the fact that you intend for it to be used for infringing purposes is enough to make you liaible for vicarious infringement. BUT, google is out signing agreements with all sorts of content owners, trying to populate youtube with legitimate content. In this situation, it hardly seems that their business model relies on infringement.
There will, no doubt, be a few people who try to sue. But, as long as google doesn't mess up, those people will lose.
Absolutely not. In the US, at least, the public DOES NOT have the general right to digitize copyrighted works, whether they are freely accessible or not. Remember all those signs you see on library photocopiers? There are some 'fair uses,' but these are limited. For example, you can record a TV show for the purpose of watching it later. But, you can't check a book out of the library, photocopy it and return the original.
Geez... There are all sorts of things that you might want to fling into space where you don't really care that much about being gentle. For example, use it to fling food and water up to the space station.
Actually, in the US, trademarks do not need to be filed -- you can acquire a trademark either by registration or by usage. (If it's by registration, you need to use it within some period of time.)
My point is that "podcast" is already a generic word -- it has become 'escalator' or 'aspirin.' If Apple really wanted to avoid confusion, they should have gone after the first few people calling them "podcasts." It's a bit late to be doing it now that everybody is 'podcasting.' The cat is out of the bag. They can still defend the word 'iPod,' but the context is somewhat smaller than what they'd probably like.
So, I think we're arguing the same point -- if you want a trademark, you have to defend it, otherwise it may become generic. But, once it's generic, you're sunk. We only disagree on whether 'podcast' is generic yet.
Slashdot Mirror
Beware the erroneous implication -- that because wealth is concentrated, the people at the bottom are in worse shape than they were when wealth is not so concentrated.
Consider the graduating class of a typical suburban high school as a closed system (ie ignore everybody not in that class). When they graduate, their individual wealths are usually pretty similar since they have very little in their own name. Now, fast forward 20 years -- some of those people will have been extremely successful, some moderately successful, and some will just be getting by. The relative wealth among the graduates has become skewed, yet each is generally better off than they were upon graduation.
If the pie keeps growing, we don't need to be as concerned with getting a smaller portion of it. In fact, there's a good argument that concentrations of wealth actually help the pie to grow -- when finding a cure for a disease may cost a billion dollars, you need people who have that sort of money and who are willing to put it at risk.
Well, the relevant part of the DMCA is this:
'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.'
(that's 17 U.S.C. 1201(a)(3)(B)). Under your reading, where it says "with the authority of the copyright owner," that means that the copyright owner has to approve the encryption being put in place. Since I don't think Tivo has agreements with all the media companies, I don't think this applies. Also, I don't think Tivo adds anything to the media, so it doesn't have any copyright in it. So, under this section, you're right.
But, there's another section, 17 U.S.C. 1201(b) which says that you cannot traffic in something that circumvents "a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof." And, here, it does that if it "prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title." That's a bit odd to read -- the expression "a right of a copyright owner" is a term of art which basically means "the things only copyright owners can do." The end result is that you cannot traffic in circumvention devices, even if they circumvent something that was not put there with the agreement of the copyright owner, so long as it keeps you from doing something that only the copyright owner can do (i.e. *copying*).
I think that the end result of this odd situation is that people can circumvent the encryption on the Tivo, but can't provide a tool for others to do the same thing.
[See a lawyer before you rely on this.]
Really? Care to share a citation for that "Federal law"? I don't believe it exists. Heck, there are a bunch of counter-examples, such as taping a performance in a public park.
As has been covered extensively here, photographing people in public is not a big deal -- if you can see it legally, you can publish a picture of what you saw, within some limits. Does anybody believe that the paparazzi got a release for all the Paris Hilton stone-cold drunk pictures that prove she doesn't wear underwear?
The more interesting question for me is what happens when they take a picture of ART, or something that is the proper subject matter of copyright. If I recall correctly, there was a large silver blob sculpture in St. Louis which the police were preventing from being photographed. Absent fair use, taking a picture of a prominent piece of public art infringes the copyright in that work. (By statute in the U.S., architectural works may be photographed without any problem.)
There is a theory in economics, the "Efficient Market Hypothesis" that effectively says that everything that's publicly known about a company is reflected in that company's market price. Suppose that you *knew for a fact* that SCO's stock would be shooting through the floor -- you would short that stock, which would, if you and several other equally smart people did the same, drive the price through the floor. But, there's a reason that you're not doing that -- you do not know for a fact. After all, there is some small chance that SCO may still win, or that everything will settle. The theory suggests that while a typical investor or analyst may not know that much about what SCO is up against, there are enough out there who do know that they have set the price appropriately.
I'm guessing that few individual investors are invested in SCO any more -- they have long since sold their shares. It's probably mainly held by a small set of very sophisticated investors (hedge funds, for example) who are taking a gamble. And, these players certainly know what the risks are.
I think his point is that if you look at many of the Linux distributions, most include some software that's covered by a license other than ones that RMS would consider "Free." Recall that RMS distinguishes "Free" and "Open Source" software. So, if your favorite Linux distribution includes a copy of the Java VM, you no longer have a completely free OS. Another way this happens is when a hardware manufacturer distributes binary-only drivers.
I'm interested in how you get along without any proprietary software at all -- I've tried and while it was possible to do 99.5% of my job using free software, the other 1/2% was a nightmare. (Thank goodness for VMware.)
> Rather tired of being treated like an idiot.
Your post didn't help. Now I know how Yoda would sound after a Meth hit.
Actually, I think his point is that the Linux community doesn't need to move as a herd. In fact, I don't think it can -- most of the Linux Kernel is distributed under a modified GPLv2, from which the "you can use newer versions of the GPL instead of this version" language has been removed.
However, all the GNU stuff, such as the compiler and libraries, is distributed under the standard GPLv2. If those developers decide to move to v3, that could pose something of a problem for Novell. Note that the developers will actually have to provide some new functionality under V3 if they want to pursue this strategy -- they can't retroactively move exiting versions to V3.
While I might agree that global warming is happening and that people may be contributing to it, that's only the first step. The next step is somewhat more difficult: what, if anything, should be done about it?
Significantly slowing human CO2 production will be quite expensive and, from what I've read, will result in some marginal change in world temperatures in 40-50 years time. The question, though is whether spending, say, $600B right now makes a whole lot of sense when you could take the same money and do things like wipe out AIDS in Africa or find a cure for childhood leukemia. At least there is universal agreement that AIDS is rampant in Africa -- there is no such universal agreement about global warming.(*) What if the naysayers are correct?
At some point, you have to do the math -- you have to look at the expected value of the good you're planning to do, discount to present-day and multiply by the likelihood that you're right. Then, you have to compare that to all the other options. It may be that the first $5B you spend on global warming gives you the biggest bang, but after that you should spend it on Cancer or Heart Disease. Heck, it may be that the right thing is to spend the money moving people away from the coast instead of trying to avoid global warming. It could be that the right choice is to do nothing and let people enjoy the next 50 years in their hummers.
But, Sony CAN ALWAYS restrict the supply to create a higher price, at least up to a limit -- the price gets too high and people will just buy an xbox. The more differentiated the product, the easier it is for the producer to do this, and they do it ALL THE TIME.
Sony LOVES this sort of thing. It creates a marketing buzz that Sony never could using traditional advertising. Why do you think they scheduled the Japanese launch a week before the US launch? There are shortages expected in both countries.
I know that Sony has been issuing press releases, blaming the short supply on the unavailability of parts. That's a crock -- it implies that Sony is incapable of managing its supply chain. In reality, EVERY new launch of a game machine deliberately keeps the original supply low for the purpose of generating this buzz. Then, shortly before Christmas, a bunch more are flooded on the market and consumers, surprised that they are even able to find one at all, gobble them up.
Pretend you're a composer and you have just written the piece that is the pinnacle of your career. The New York Times says that your piece is the most musically perfect piece of classical music every played. Orchestras around the world want to perform your work. Do you have a right to charge them for it?
Of course you do. If you didn't, then why would you write the music?
"Copyright" is not a monolithic right -- it is a bundle of individual rights that includes the right to copy, the right to prepare derivative works and, important here, the right to perform the work publicly. Non-public "performances", like playing in your garage or humming, are excluded.
There was a post questioning whether the performer or the bar should be liable. In general, the performer is directly liable for the infringement -- he's performing it publicly. But, because the bar owner could have prevented the infringement, but didn't and instead profited from it, the bar owner is probably liable as well. (It's called 'vicarious infringement.') Mainly for convenience, ASCAP and others typically deal with the bar owners rather than the performers.
They're still liable for the infringement -- the "But, he *told* me it wasn't infringing" defense doesn't exist. The contract may get them out of willful infringement, at least unless they had notice. But, all that does is reduce the high end on damages that they'd have to pay.
There's an argument that rights organizations such as ASCAP and BMI over-compensate the top players and under-compensate the little guys. On a site such as YouTube, you can see how this would happen. Sure, there are lots of clips from Comedy Central or SNL, but there are also lots of clips of Joe-Bob falling off his dirt-bike while trying to jump a bonfire. All of these clips are covered by copyright, but it's likely that Joe-Bob's videographer won't see a dime from a video rights society.
The other thing to be aware of is that a video often impacts other copyrights. So, if the video of Joe Bob jumping over the bonfire happens to include people singing "Kum-By-Ya" in the background, you might have to get the right to transmit the music. If he's clearly wearing a sponge-bob T-shirt while jumping, you might have to get the right to that as well. My personal opinion is that such things are covered by fair use. But, companies (especially video production companies, which naturally want to minimize fair use) go to great lengths to buy the rights to such content and will edit things out if they can't obtain such rights. Duke Law School has a great comic book (?!) about this at http://www.law.duke.edu/cspd/comics/digital.html .
In the US, it will be a long time.
In general, the police cannot do discretionary stops inside the country. They are allowed to stop drivers at stationary drunk-driving checkpoints as long as they use a predetermined selection of cars (every 3rd or 5th or whatever). These stops are OK because (1) they're very limited, (2) they offer no discertion and (3) they are related to road safety. The police are not allowed to randomly search people or their laptops without any suspicion.
At the border, things are different -- the government has a strong interest in controlling what comes in at the border, whether it's drugs, nuisance plants or child pornography. So, there is no 4th amendment right at the border. (I'll admit that keeping kiddie porn out of an International airport seems dumb when they can't keep it off the Internet.) In Canada, for example, they can charge customs on some types of business records, whether they're electronic or paper. (I don't remember the details.)
Hmmm... MythTV front-end?
Having a widely-distributed set-top box capable of running Linux could open up all sorts of interesting projects.
First of all, you can't quote an amicus brief as proof of the actual law -- these things are often a statement of what people would like the law to be, not what it actually is.
t m ). A major quote: "if the non-literal structures of literary works are protected by copyright; and if computer programs are literary works, as we are told by the legislature; then the non-literal structures of computer programs are protected by copyright."
I point you to Computer Associates v. Altai, a 1992 case, (It's online at http://digital-law-online.info/cases/23PQ2D1241.h
There is a split between the 1st and 2nd circuits about how far to carry this, but you can definately protect more than the raw code.
Don't generally respond to AC's, but I'll make an exception here.
i cles/ideapt1-20.htm for a decent overview. Look for "Learned Hand" and check out some of the cases, especially Kroft v. McDonald's.
Uh, no, I'm not. I'd point you to, for example, http://www.edwardsamuels.com/copyright/beyond/art
Their first claim is a bit off -- in order to find copying of a computer program, you don't actually need to have copying of the actual code, either source or object. It can be sufficient to copy the structure. So, for example, using somebody else's design documents to generate your own code can still be an infringement, even though you never even SAW their source code.
There's this concept in US copyright law called the "Idea/Expression dichotomy." Basically, this says that you can't protect an idea, but you can protect the expression of that idea. The difficult part is trying to figure out where the boundary exists -- the expression isn't just the written word itself. For example, a book about a boy wizard named Larry Hatter and his two friends at a British school "Pigzits" of witchcraft divided into four houses where they fight a guy called "he who nobody wants to name" with a lot of other similar details would probably infringe J.K. Rowlings' copyright in the Harry Potter character, even if none of the actual language was copied. (Parodies are another matter....)
The same thing goes in code. The fact that there is no actual code duplication does not mean that there isn't any copyright infringement -- it just means that SCO's case is that much harder to prove.
Funny... I re-read the DMCA and didn't find the "It's too much trouble" exception.
I know the position you're taking -- you're effectively arguing that although YouTube might qualify for protection under the the DMCA's "safe harbor" (in 17 U.S.C. 512(c)(1)(A) and (C)), it still have a 512(c)(1)(B) problem, which says it can't make money "directly attributable to the infringing activity," even if it's otherwise inside the safe harbor. But, that cannot mean what you think it means -- the word "directly" HAS to be construed strictly, or it would eviscerate the safe-harbor. ISPs, after all, are IN THE BUSINESS of hosting content for money. So, hosting infringing content gives them money, which would "directly attributable to the infringing activity." Under your construction, therefore, the only ISPs eligible for the safe-harbor are nonprofits!
There are plenty of advertiser-supported services out there for hosting blogs or photos or generic webpages. Nobody thinks that the advertisement invalidates the safe harbor. I don't know why it should be any different when the hosted content is video.
The only thing google really needs to worry about is the infringements that happened at YouTube before google took it over. And, if they're smart, they can isolate that liability to just the youtube subsidiary.
Here's the deal: Somebody posts a copy of a Sienfeld episode on Youtube. It staya up for a while until the Seinfeld owners send a DMCA takedown request to youtube. The only way that a copyright lawsuit will happen here is if youtube doesn't take down the episode. If it does, it's inside a safe harbor created by the DMCA.
You're making a rather odd argument. Of course the police "can" arrest anybody they can actually put handcuffs on. Heck, I "can" arrest anybody also.
The questions are (1) is it legal to do so, and (2) what's the remedy if it's not legal and a cop does it anyway.
And, the answers are:
(1) No. Except for some thin circumstances like protective custody (the drunk tank being a good example), a cop is not allowed to arrest somebody without probable cause.
(2) The remedy is a civil suit against the officer and the department for unlawful arrest and/or false imprisonment. At the extreme end, it might even be kidnapping, which could be prosecuted as a crime.
There are two ways in which Google could end up getting in copyright trouble:
1. Direct infringement: somebody posts a video they don't own and the copyright owner sues. This isn't a problem, so long as YouTube adheres to the DMCA notice-and-takedown provisions. The copyright owner sends an email to google, saying "You have my copyrighted content at www.youtube.com/blah/blah/blah. Please remove it," google removes it and no liability.
2. Vicarious infringement: basically, the Sony Betamax/Grokster doctrine: you have this site up there intending for people to post infringing material. So, even though your site may be used for non-infringing purposes, the fact that you intend for it to be used for infringing purposes is enough to make you liaible for vicarious infringement. BUT, google is out signing agreements with all sorts of content owners, trying to populate youtube with legitimate content. In this situation, it hardly seems that their business model relies on infringement.
There will, no doubt, be a few people who try to sue. But, as long as google doesn't mess up, those people will lose.
Absolutely not. In the US, at least, the public DOES NOT have the general right to digitize copyrighted works, whether they are freely accessible or not. Remember all those signs you see on library photocopiers? There are some 'fair uses,' but these are limited. For example, you can record a TV show for the purpose of watching it later. But, you can't check a book out of the library, photocopy it and return the original.
Geez... There are all sorts of things that you might want to fling into space where you don't really care that much about being gentle. For example, use it to fling food and water up to the space station.
Actually, in the US, trademarks do not need to be filed -- you can acquire a trademark either by registration or by usage. (If it's by registration, you need to use it within some period of time.)
My point is that "podcast" is already a generic word -- it has become 'escalator' or 'aspirin.' If Apple really wanted to avoid confusion, they should have gone after the first few people calling them "podcasts." It's a bit late to be doing it now that everybody is 'podcasting.' The cat is out of the bag. They can still defend the word 'iPod,' but the context is somewhat smaller than what they'd probably like.
So, I think we're arguing the same point -- if you want a trademark, you have to defend it, otherwise it may become generic. But, once it's generic, you're sunk. We only disagree on whether 'podcast' is generic yet.