Police have long been able to record the telephone numbers that you're dialing without a warrant. The idea is that the information you give a third party (like the phone number you're dialing to the phone company) isn't protected. Similar information comes from the header of e-mails -- you have to tell your ISP where it's going, so they're the third party.
The interesting case is going to be when your computer sends the e-mail directly to your friend's computer. In that case, there is no third party.
"Save everybody time" is the best the pro-standardization folks could come up with? How about: (1) save training and support expenses for multiple sets of tools & languages; (2) specialists in the language & its quirks can benefit the entire enterprose not just the single group; (3) integration between different pieces of software is significantly easier if they're all in the same language; (4) easier to reuse code; and (5) easier to adjust when developers leave.
It's impossible to know whether it's a good idea in your case without knowing a lot more about what your company does, but in general a bad technical decision made for a good business reason is better than a bad business decision made for a good technical reason. The first one will cause you headaches down the road, but the second will make sure there's no road to go down. The key is deciding which decisions are good and which only appear to be good.
Under the First Sale Doctrine, once you've bought a work, you can dispose of it however you want. It's not a question of fair use -- your right to transfer to somebody else is an explicit right in the Copyright Act. Fair Use, on the other hand, is a lot more murky.
This is a common complaint of copyright holders -- textbook publishers have long been troubled by the aftermarket for their works.
Cable modem providers (ie your local telephone company) use most of their bandwith to carry television. At any given moment, the majority of the signal going across my cable carries television programs that I'm not watching. Why shouldn't the phone company be able to do the same thing?
Broadband ISPs need some incentive to increase bandwidth on their networks. If they can't use it themselves and they can't charge other providers to use it, then they'll have to charge end-users. But, there's only so much that end-users are going to be willing to pay for higher speed. As a result, the broadband ISPs will take a lot longer to roll out higher bandwidth service.
Think about it -- Verizon didn't build the network and then say to themselves "Hey. We could use this to carry TV. Why didn't we think of that earlier?" TV was part of the reason that they built it.
It's good for consumers too -- it'll be another competitor to cable and satellite.
The big problem is that they're effectively locking out a bunch more TV competitors -- there are any number of providers out there who would like to deliver video over the Internet, but Verizon's bandwidth allocation locks them out. Verizon really ought to open up the Internet pipe and then offer their video service on the internet -- doing so would allow them to target all Internet users, not just their own customers.
I'm just suggesting that mere assertions that sexual preference is immutable are not particularly.
Anecdotal evidence is factual evidence, although I agree that it's possible that my personal experience is so atypical that it does not represent reality. However, I would point out that if somebody makes a statement that "All Gay People are X," then I only need to show one gay person who is not X in order to disprove the statement. That said, it is more than just me -- the "Ex-Gay" page at Wikipedia, for example, seems to indicate that there is some choice element.
[Note: I'm not an ex-gay backer/promoter. I have no opinion on whether these therapies generally work. But, if they've worked even just once, that's sufficient to disprove the original statement.]
I know two people who chose to be gay. I know somebody who was gay, decided that he didn't want to be, got some counseling and now considers himself to be straight. I also know a number of people who claim that they never made any choice.
We don't know a whole lot about what determines what sex people find attractive. And, unfortunately, a lot that we supposedly know isn't trustworthy. Sayings such as "you do not choose your sexual preference," while popular, reflect more political sentiment than fact.
The court did mention this, but I don't think that it impacts the implied license. I can't say "I had an implied license based on your knowledge and behavior" when I was completely unaware of your knowledge and behavior at the time that I relied on them.
I think the facts of the two situations are enough to distinguish them. Wireless routers are consumer devices and most lay people just don't know how to configure a wireless router properly -- they just don't expect that others will be able to use their networks and (even if they did), they're probably not familiar with the risks involved.
Being on the Internet, however, is different -- 99.99% of all websites that exist now have been created since search engines came into existance and since the robots.txt de facto standard was created. So, new entrants should reasonably know and expect that their website will be indexed. Heck, the vast majority of websites actually rely on this.
Copyright law actually specifically incorporates the implied license view in one place. If you have a copyright in an architectural work that is visible from a public place, then 17 U.S.C. 120 says that your copyright does not extend to pictures of that work. So, by putting a cool new building on a public street, I'm giving people the right to take pictures of it.
Forget the fair use analysis, the most important thing here is the success of the "Implied License" claim. Basically, it goes like this: You operate a website. The web was created specifically with the idea that "robots" would crawl across it, and there is a standard well-known way to prevent them from crawling your site. Even more specifically, there's another standard well-known way to keep search engines from cacheing your content. Being on the web but not using these techniques means that you give search engines permission to cache your content.
It's sort of like what happens when you leave a potful of candy at your front-door on Oct. 31st. In theory, you could claim that all those kids who come to your door and help themselves are stealing. But, because everybody knows how Halloween works, you've implicitly given permission for them to do it.
In this opinion, the Fair Use analysis was basically just used as a stopgap of "what little infringement that's left after you account for the implied license is a fair use." If the website had included a robots.txt file, the fair use case would have been much harder to make.
The Implied License is a stake in the ground for "This is the Internet. The rules are different here." IMO, that's a good thing -- there are a bunch of things that just couldn't happen if you had to get explicit permission from every content owner.
You're wrong. The Constitution says that "the President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states . .." There are numerous instances of military operations in the US, starting with the Whiskey Rebellion in 1794. The Civil War is another example.
Secondly, there's no claim that the spying was accompished "within the contintental United States." As I understand it, it was done at NSA listening posts in foreign nations. The complaint is that since one end of the conversation is a U.S. Citizen, probable cause is required. Whether it is or not is not at all clear -- there's a good argument that the president has the right to listen in to all of the enemy's communications, even those that terminate inside the U.S..
First of all, it's not domestic spying -- only international calls are being monitored. Second, it's only illegal if the President needed congressional approval to do it. The President, as the chief executive, has some inherent authority that cannot be limited by what the Congress does. For example, the Congress could have passed a law prohibiting Ford from pardoning Nixon, but that would have been a legal dead letter as the pardon power is reserved to the President. The president has similar powers with regard to national security. There are two main questions: (1) did the President act under his inherent authority, and (2) if not, did he act under statutory authority? Laws passed after FISA, after all, may change FISA's applicability and the President is contending that the post-9/11 authorization of force did that.
In any case, there's also the question of whether the monitoring met the legal standard for a 'search.' Typically, having somebody listen in to your phone calls is a search under the 4th amendment. However, the NSA didn't have people listening in -- they had computers recording and looking for key words, like "Terrorist," "Nuclear Bomb", &c. Think about it: there are probably many thousands of such calls recorded, and you don't really want to hire a bunch of people fluent in Arabic to go through them all by hand. So, have the computers do some speech-recognition to screen for conversations of interest.
As a result, there's an analogy to drug-searching dogs, which are not considered to be searches because of the limited intrusion that they present -- they don't open up your suitcases to see if you have dirty underwear, a vibrator or anything else that you don't really want to be public. Instead, they hit specifically on drugs. Somebody can make the claim that the NSA evesdropping program is the same thing -- nobody is listening to your calls, they're only looking for conversations that contain very specific subject matter and don't hit on conversations between you and your Arabic lover. The intrusion is not nearly as great as it would be if somebody were listening to every call.
Just a theory. I don't know where it will come out legally, except to say that neither side has an open-and-shut case.
Google can play the game. Let's say there there are two broadband internet providers in an area, and Google decides that it's only going to pay the fee to one of them. What is going to happen to the subscribers of the other? They will leave -- if I can't even get Google on my ISP, but I can on the competition, I'm going to switch.
The real problem isn't in current services -- it's in high-bandwidth (mainly video) applications. Not only will this will require rolling out new technology, but it will compete directly with services that the cable companies want to offer themselves. Why would you go to the cable company's pay-per-view service when you can get the same movie from the studio's internet video-on-demand service and pay less? From the ISP's point of view, increasing bandwidth is actually going to decrease revenue. And, that's why they want to charge content providers.
The other thing is that Quality-of-Service (QoS) becomes more important with video and that requires marking all packets at some point. If you don't have any way to distinguish between the traffic that gets better service and the traffic that doesn't, then you can't do QoS. To the ISPs, the best way to ration that is to charge those willing to pay for it.
So, basically, what he's saying is that "Anything you do to increase profits or reduce expenses will be matched by your competitors and you will never be able to get a leg up on them." But, that's no surprise. In a competitive environment you are just not going to be able to get huge profits. But, that has nothing really to do with search engines or the electronic world at all.
Increasing advertising is not always the best way of increasing revenue -- another way is to cut prices. If you sell twice as much at 30% margin than you did at 40% margin, you come out better. Of course, then your competitor goes to 20% and you go to 10% and then your competitor goes to 5% &c. Merchants in a competitive environment will ALWAYS spend their margin trying to beat their competition.
Of course, after a certain point, a merchant won't cut any more -- he'll just quit and do something different. So, there is some natural floor margin.
Um, under U.S. copyright law, the original author does not own a full copyright in derivative works. He has the exclusive right to create derivative works, but may license others to do so. In that case, the others own the copyright in what they added and the author owns the copyright in the original.
For example, consider a song recording: it has two copyrights, the right in the underlying music and lyrics and the right in the recording. If you copy the recording, you infringe both. If you listen to the recording and copy the words, you only infringe the underlying copyright.
The GPL isn't going to be thrown out on mutual obligation grounds -- the exchange of "You let me redistribute your software" for "I distribute my source code with that software" is sufficient. I'm not forced to accept the bargain, but once I redistribute your code, I have either accepted the GPL's terms or have infringed the copyright.
Which Law Professor? To be honest, that doesn't impress me very much -- many law professors haven't actually practiced a day of their lives.
The biggest problem with the GPL, even the new version, is that it doesn't really address enforceability. At the very minimum, it should specifically say that when you make a modification to the work, you are creating a derivative work not contributing to a joint work (it tries to say this in the definition of "Work based on the program," but doesn't actually get there.) But, it should also talk about who owns the copyright in modifications and who has the right to license the software under different terms. It doesn't have choice-of-law or choice-of-venue -- these omissions naturally make enforcement harder.
I don't know why you think it's a "Strong Legal Document" -- what does that even mean? To me, that expression would mean "It's clear and you know that if you break it, you're in deep trouble." At least the second half of this isn't true -- witness the Sony DRM software that included GPL'd code, but has yet to yield an infringement suit.
I'm going with Cpt Kagarooski on this one, more-or-less. The GPL isn't really a contract, per se. It's an offer to enter into a contract. Once somebody has accepted the offer, then there is a contract and the terms of the contract are spelled out in the GPL. There is an exchange as follows:
(Copyright owner(s)): "We agree to allow you to distribute the software." (Later user): "We agree to distribute our changes and make the same offer to others that you made to me."
The acceptance need not be communicated back to the copyright holder -- there's such a thing as "acceptance by performance."
[That's not exact, but it's close enough.]
RMS & Co have taken this weird position that because it's a 'license,' it's not a contract. Their example is that you can give somebody a license to cross across your property, and that certainly isn't a contract. However, the license to cross is basically a gift which can be typically revoked at any time. If you had said "I will let you cross whenever you want if you give me $10," there still may be a "license," but it's also a contract. If you had said "I will let you cross whenever you want if you give my town $10," it's still a contract all the same.
In theory, the GPL, like any other software license, is enforced by the owner of the copyright in the code. In the U.S., this can take two forms:
(1) A breach-of-contract claim for violating the license; and (2) A copyright infringement claim.
The main problem that you have, in either case, is what the appropriate remedy is. For copyright infringement in the U.S. you can get: (1) an injuncting barring further infringement and either (2) actual damages or (3) statutory damages. (4) attorney's fees can also be awarded.
If it's a profitable current product, then the injunction probably hurts the most. If the software is given away free (as in beer), then it's really hard to prove any actual damages. And, statutory damages are really up to the court's discretion and can range from as little as $200 to $150K. There's a lot of risk there and the legalities are not completely straight-forward.
Here's one little argument (IANAL. Don't rely on this):
If a work is a "joint work" under the Copyright Act, then the authors share the copyright and each is able to exercise the copyright holder's exclusive rights. So, each author can sub-license the entire work however he/she wants. As a result, although one owner licenses the work under the GPL, another one may issue a proprietary license. If an open-source project is a "Joint Work," then any of its authors can license it under whatever terms, even without the agreement of the other authors. And, if that's the case, then the GPL is not worth a whole heck of a lot.
A Joint Work is "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or intedepdent parts of a unitary whole." 17 U.S.C. 101. Does an open-source project qualify? You can make a decent case that it does: when somebody publishes their code under an open-source license, they are effectively intending that others merge their contributions into the project. And, such contributions are, by nature, interdependent.
I should note that there's another interpretation, which is that each modification creates a new derivative work. In that case, there is no joint work -- each author owns what he/she contributed and the GPL has a lot more teeth.
The GPL helps some -- paragraphs 0 and 2 imply that modifications are derivative works. But, the GPL doesn't say so specifically, nor does it specifically say that you're not creating a joint work. One of the tenants of Contract Law is that you construe the contract against the drafter. The end result is that enforcing the GPL is not quite the slam-dunk case that people seem to think it is. (Again, IANAL. Don't rely on this.)
(1) In most areas, there are only two broadband ISPs, the Cable company and the Phone company. They're both either already in or trying to get into the video business. As a result, if your cable company forces video off their internet connection, you won't be able to go to the phone company, because the phone company will do the same thing.
(2) It seems to me that there is an antitrust problem with your ISP setting its own traffic at a higher priority, allowing it to beat out the competition by leveraging its control of the last mile internet connection into control of some other product (like video or VoIP). Antitrust law has something called the "Essential Facilities Doctrine," which basically says that if you control some facility which your competitors need in order to compete with you, then you have grant them access to it. In this case, the essential facility may be carriage at a higher priority.
The writer of the article seems to be worried most about a "two-tiered Internet" and how the networks are looking to prioritize some traffic over others. I don't see what the big deal is -- prioritization has been built into the IP protocol for decades now. Most network operators, however, have ignored the priorities.
The main reason for this is that if they started accepting priorities from their customers or peer networks, then their customers and peer networks would all set their packets to the highest priority. The end result is that traffic would be routed the same. For QoS to be of any use, there has to be a reason for people not to use it. And, money is the best way of doing this -- if you want to limit the number of high-priority packets going across your network, charge the people who put them there more than if they put low-priority packets on.
Streaming media requires a different type of service than do web pages -- if your GIF logo takes an additional 100 ms to load, you probably won't notice. If, however, a chunk of your phone call takes an extra 100 ms, you will notice it.
The problem comes in when Internet Video becomes widespread, because its need for high bandwith will overwhelm the rest of the content on the network. Prioritization won't help because almost all of the traffic will be video.
The real reason for allowing prioritization is that network operators won't increase their bandwidth without it. Think about it -- why would your cable company spend a lot of money on its Internet service so somebody else can use the Internet service to compete the cable provider's pay-per-view service? The only way the cable company will do it is if they can get a cut of the action.
That's just not right. Monopoly, by definition is all about market share. For example, consider the power company in most areas -- it's a monopoly because it has 100% of the market, regardless of its business activities.
In any case, "Hurting competitors" is what competition is all about -- if you can score a knock-out punch in the marketplace, that's generally considered to be a good thing. Do you think that Honda doesn't want to hurt GM or that Dell doesn't want to hurt Gateway?
The problem isn't monopolies in general, the problem is anticompetitive behavior -- when a company relies on something other than producing a better product (&c) to maintain or acquire a monopoly position. An example is when Microsoft got into trouble for punishing PC makers for bundling the Netscape browser.
(1) You do not need a warrant to search every area. (2) You do generally need probable cause to support a warrant. (3) Some searches do not require even probable cause. Heck, some searches just happen with no suspicion at all.
Examples:
You can search a car if you have probable cause, but you don't need a warrant. If you're impounding a car, you can search the whole thing, as long as you have a policy of doing so. If you're conducting an administrative inspection (say of a Nuclear Power Plant), you don't need a warrant. With "Articulable suspicion," you can stop somebody, talk to them and frisk them for weapons. Schoolchildren can be searched without a warrant and with something less than probable cause. If you've been taken in for a DUI, the cops can take your blood without a warrant. You can search people and cars coming into the US with much less than probable cause. You do not need a search warrant to go through garbage somebody puts out at the curb. You do not need a search warrant to find out the telephone numbers that somebody dialed. (You generally need one for the conversation.)
There are two generic possible default rules of copyright: (1) you have to ask permission before copying (or other uses), and (2) The copyright owner has to tell you if he denies permission.
Rule (2) used to be the default rule, at least in the U.S. -- if you didn't mark your content with the (C) logo or otherwise indicate that it is under copyright, you lost your right to sue. (That's not quite how it worked, but close enough...)
Rule (1) is now the current rule -- everything is presumed to be under copyright and does not need to be marked in order to be protected. The change isn't huge, at least from a practical standpoint, because most people marked their work before the change (doing so wasn't costly) and anybody who wants to copy would go back to the publisher in either case. And,the penalty for not marking was pretty severe. There was also not much demand for widespread copying.
It seems to me that rule (2) makes the most sense for search engines and other content aggregators, and happens to be the one that's built into the 'net. After all, most websites want to be searched -- the entire reason you put things on the web is so people will come find it and look at your website. Search engines help that. In addition, it's hugely more efficient for websites to say whether they want to be indexed or not than for the search engines to ask permission from each website. In fact, having to ask permission would make search engines impossible. And, besides, robots.txt files have been around almost since the first webserver. It's easy.
In the US, I suspect that what a search engine does would have to be considered fair use. Probably the most important of the 4 "Fair Use" factors is "the effect of the use upon the potential market for or value of the copyright material" -- providing a search capability, even if it also provides links to competitors, has to be a net positive good for a website. Two other of the 4 factors seem to lean in favor of fair use also: (1) "the purpose and character of the use" (basically, a search engine helps people find your content), and (2) "the nature of the copyrighted work" (a web page, which, by nature is intended to be searched.)
As to your first point, copyright is basically a grant of monopoly in that particular work. But, other works, while not identical, are certainly substitutes. If you want to buy some music and like 5 CDs that are out there, but one is priced twice as much as the others, you probably won't buy that one. A Toyota Camry and a Honda Accord are substitutes, even if they are not identical -- if the price of one rises, consumers will switch to the other. The same is true in popular music. Britney charging too much for her CD? You can buy a Christina CD instead.
I haven't seen any evidence that recording companies don't want to give away singles because of the effect on the RIAA's position. I suspect that they just don't see that as being an effective marketing technique. (Some of their bands chose to do it, though....)
If the recording industry is getting together and agreeing on what to charge for CD's, that's horizontal price fixing and is illegal. But, I don't see any evidence that they are currently doing this.
I assume that you're talking about the MPAA (Motion Picture Ass'n of America) and the RIAA (Recording Industry Ass'n of America). They're not monopolies because they don't sell any significant products. The products are made by their member companies, which compete with each other.
So longs as trade associations are not not used as vehicles to, say, agree on prices or output, they're not anti-competitive at all. It's possible to be evil without being a monopoly.
1. Let's say that you modify GPL'd code and distribute the code w/o a binary. Can you cure this by: (a) stopping the distribution and/or (b) doing some sort of recall, or do you have to (c) distribute your source code now? What if you can't find everybody who you gave the original to? What if the violation is discovered in a product which you no longer distribute?
2. Actually, can you ever cure, or are you liable for copyright infringement even if you do start distributing source code? (assuming you do so once somebody sues you.)
3. Who owns the copyright to modifications?
4. Choice of law/Choice of Venue -- if you're in California and violate the GPL on software written by somebody in Florida, do they have to sue you in California? Which state's law is used to interpret the GPL? What if you're in different countries?
A big problem with the GPL is that it talks a lot about rights, but seems to have given little thought to how those rights are enforced.
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Police have long been able to record the telephone numbers that you're dialing without a warrant. The idea is that the information you give a third party (like the phone number you're dialing to the phone company) isn't protected. Similar information comes from the header of e-mails -- you have to tell your ISP where it's going, so they're the third party.
The interesting case is going to be when your computer sends the e-mail directly to your friend's computer. In that case, there is no third party.
"Save everybody time" is the best the pro-standardization folks could come up with? How about: (1) save training and support expenses for multiple sets of tools & languages; (2) specialists in the language & its quirks can benefit the entire enterprose not just the single group; (3) integration between different pieces of software is significantly easier if they're all in the same language; (4) easier to reuse code; and (5) easier to adjust when developers leave.
It's impossible to know whether it's a good idea in your case without knowing a lot more about what your company does, but in general a bad technical decision made for a good business reason is better than a bad business decision made for a good technical reason. The first one will cause you headaches down the road, but the second will make sure there's no road to go down. The key is deciding which decisions are good and which only appear to be good.
Under the First Sale Doctrine, once you've bought a work, you can dispose of it however you want. It's not a question of fair use -- your right to transfer to somebody else is an explicit right in the Copyright Act. Fair Use, on the other hand, is a lot more murky.
This is a common complaint of copyright holders -- textbook publishers have long been troubled by the aftermarket for their works.
Cable modem providers (ie your local telephone company) use most of their bandwith to carry television. At any given moment, the majority of the signal going across my cable carries television programs that I'm not watching. Why shouldn't the phone company be able to do the same thing?
Broadband ISPs need some incentive to increase bandwidth on their networks. If they can't use it themselves and they can't charge other providers to use it, then they'll have to charge end-users. But, there's only so much that end-users are going to be willing to pay for higher speed. As a result, the broadband ISPs will take a lot longer to roll out higher bandwidth service.
Think about it -- Verizon didn't build the network and then say to themselves "Hey. We could use this to carry TV. Why didn't we think of that earlier?" TV was part of the reason that they built it.
It's good for consumers too -- it'll be another competitor to cable and satellite.
The big problem is that they're effectively locking out a bunch more TV competitors -- there are any number of providers out there who would like to deliver video over the Internet, but Verizon's bandwidth allocation locks them out. Verizon really ought to open up the Internet pipe and then offer their video service on the internet -- doing so would allow them to target all Internet users, not just their own customers.
I'm just suggesting that mere assertions that sexual preference is immutable are not particularly.
Anecdotal evidence is factual evidence, although I agree that it's possible that my personal experience is so atypical that it does not represent reality. However, I would point out that if somebody makes a statement that "All Gay People are X," then I only need to show one gay person who is not X in order to disprove the statement. That said, it is more than just me -- the "Ex-Gay" page at Wikipedia, for example, seems to indicate that there is some choice element.
[Note: I'm not an ex-gay backer/promoter. I have no opinion on whether these therapies generally work. But, if they've worked even just once, that's sufficient to disprove the original statement.]
Pfft.
I know two people who chose to be gay. I know somebody who was gay, decided that he didn't want to be, got some counseling and now considers himself to be straight. I also know a number of people who claim that they never made any choice.
We don't know a whole lot about what determines what sex people find attractive. And, unfortunately, a lot that we supposedly know isn't trustworthy. Sayings such as "you do not choose your sexual preference," while popular, reflect more political sentiment than fact.
The court did mention this, but I don't think that it impacts the implied license. I can't say "I had an implied license based on your knowledge and behavior" when I was completely unaware of your knowledge and behavior at the time that I relied on them.
I think the facts of the two situations are enough to distinguish them. Wireless routers are consumer devices and most lay people just don't know how to configure a wireless router properly -- they just don't expect that others will be able to use their networks and (even if they did), they're probably not familiar with the risks involved.
Being on the Internet, however, is different -- 99.99% of all websites that exist now have been created since search engines came into existance and since the robots.txt de facto standard was created. So, new entrants should reasonably know and expect that their website will be indexed. Heck, the vast majority of websites actually rely on this.
Copyright law actually specifically incorporates the implied license view in one place. If you have a copyright in an architectural work that is visible from a public place, then 17 U.S.C. 120 says that your copyright does not extend to pictures of that work. So, by putting a cool new building on a public street, I'm giving people the right to take pictures of it.
Forget the fair use analysis, the most important thing here is the success of the "Implied License" claim. Basically, it goes like this: You operate a website. The web was created specifically with the idea that "robots" would crawl across it, and there is a standard well-known way to prevent them from crawling your site. Even more specifically, there's another standard well-known way to keep search engines from cacheing your content. Being on the web but not using these techniques means that you give search engines permission to cache your content.
It's sort of like what happens when you leave a potful of candy at your front-door on Oct. 31st. In theory, you could claim that all those kids who come to your door and help themselves are stealing. But, because everybody knows how Halloween works, you've implicitly given permission for them to do it.
In this opinion, the Fair Use analysis was basically just used as a stopgap of "what little infringement that's left after you account for the implied license is a fair use." If the website had included a robots.txt file, the fair use case would have been much harder to make.
The Implied License is a stake in the ground for "This is the Internet. The rules are different here." IMO, that's a good thing -- there are a bunch of things that just couldn't happen if you had to get explicit permission from every content owner.
You're wrong. The Constitution says that "the President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states . . ." There are numerous instances of military operations in the US, starting with the Whiskey Rebellion in 1794. The Civil War is another example.
Secondly, there's no claim that the spying was accompished "within the contintental United States." As I understand it, it was done at NSA listening posts in foreign nations. The complaint is that since one end of the conversation is a U.S. Citizen, probable cause is required. Whether it is or not is not at all clear -- there's a good argument that the president has the right to listen in to all of the enemy's communications, even those that terminate inside the U.S..
First of all, it's not domestic spying -- only international calls are being monitored. Second, it's only illegal if the President needed congressional approval to do it. The President, as the chief executive, has some inherent authority that cannot be limited by what the Congress does. For example, the Congress could have passed a law prohibiting Ford from pardoning Nixon, but that would have been a legal dead letter as the pardon power is reserved to the President. The president has similar powers with regard to national security. There are two main questions: (1) did the President act under his inherent authority, and (2) if not, did he act under statutory authority? Laws passed after FISA, after all, may change FISA's applicability and the President is contending that the post-9/11 authorization of force did that.
In any case, there's also the question of whether the monitoring met the legal standard for a 'search.' Typically, having somebody listen in to your phone calls is a search under the 4th amendment. However, the NSA didn't have people listening in -- they had computers recording and looking for key words, like "Terrorist," "Nuclear Bomb", &c. Think about it: there are probably many thousands of such calls recorded, and you don't really want to hire a bunch of people fluent in Arabic to go through them all by hand. So, have the computers do some speech-recognition to screen for conversations of interest.
As a result, there's an analogy to drug-searching dogs, which are not considered to be searches because of the limited intrusion that they present -- they don't open up your suitcases to see if you have dirty underwear, a vibrator or anything else that you don't really want to be public. Instead, they hit specifically on drugs. Somebody can make the claim that the NSA evesdropping program is the same thing -- nobody is listening to your calls, they're only looking for conversations that contain very specific subject matter and don't hit on conversations between you and your Arabic lover. The intrusion is not nearly as great as it would be if somebody were listening to every call.
Just a theory. I don't know where it will come out legally, except to say that neither side has an open-and-shut case.
Google can play the game. Let's say there there are two broadband internet providers in an area, and Google decides that it's only going to pay the fee to one of them. What is going to happen to the subscribers of the other? They will leave -- if I can't even get Google on my ISP, but I can on the competition, I'm going to switch.
The real problem isn't in current services -- it's in high-bandwidth (mainly video) applications. Not only will this will require rolling out new technology, but it will compete directly with services that the cable companies want to offer themselves. Why would you go to the cable company's pay-per-view service when you can get the same movie from the studio's internet video-on-demand service and pay less? From the ISP's point of view, increasing bandwidth is actually going to decrease revenue. And, that's why they want to charge content providers.
The other thing is that Quality-of-Service (QoS) becomes more important with video and that requires marking all packets at some point. If you don't have any way to distinguish between the traffic that gets better service and the traffic that doesn't, then you can't do QoS. To the ISPs, the best way to ration that is to charge those willing to pay for it.
So, basically, what he's saying is that "Anything you do to increase profits or reduce expenses will be matched by your competitors and you will never be able to get a leg up on them." But, that's no surprise. In a competitive environment you are just not going to be able to get huge profits. But, that has nothing really to do with search engines or the electronic world at all.
Increasing advertising is not always the best way of increasing revenue -- another way is to cut prices. If you sell twice as much at 30% margin than you did at 40% margin, you come out better. Of course, then your competitor goes to 20% and you go to 10% and then your competitor goes to 5% &c. Merchants in a competitive environment will ALWAYS spend their margin trying to beat their competition.
Of course, after a certain point, a merchant won't cut any more -- he'll just quit and do something different. So, there is some natural floor margin.
Um, under U.S. copyright law, the original author does not own a full copyright in derivative works. He has the exclusive right to create derivative works, but may license others to do so. In that case, the others own the copyright in what they added and the author owns the copyright in the original.
For example, consider a song recording: it has two copyrights, the right in the underlying music and lyrics and the right in the recording. If you copy the recording, you infringe both. If you listen to the recording and copy the words, you only infringe the underlying copyright.
The GPL isn't going to be thrown out on mutual obligation grounds -- the exchange of "You let me redistribute your software" for "I distribute my source code with that software" is sufficient. I'm not forced to accept the bargain, but once I redistribute your code, I have either accepted the GPL's terms or have infringed the copyright.
Which Law Professor? To be honest, that doesn't impress me very much -- many law professors haven't actually practiced a day of their lives.
The biggest problem with the GPL, even the new version, is that it doesn't really address enforceability. At the very minimum, it should specifically say that when you make a modification to the work, you are creating a derivative work not contributing to a joint work (it tries to say this in the definition of "Work based on the program," but doesn't actually get there.) But, it should also talk about who owns the copyright in modifications and who has the right to license the software under different terms. It doesn't have choice-of-law or choice-of-venue -- these omissions naturally make enforcement harder.
I don't know why you think it's a "Strong Legal Document" -- what does that even mean? To me, that expression would mean "It's clear and you know that if you break it, you're in deep trouble." At least the second half of this isn't true -- witness the Sony DRM software that included GPL'd code, but has yet to yield an infringement suit.
I'm going with Cpt Kagarooski on this one, more-or-less. The GPL isn't really a contract, per se. It's an offer to enter into a contract. Once somebody has accepted the offer, then there is a contract and the terms of the contract are spelled out in the GPL. There is an exchange as follows:
(Copyright owner(s)): "We agree to allow you to distribute the software."
(Later user): "We agree to distribute our changes and make the same offer to others that you made to me."
The acceptance need not be communicated back to the copyright holder -- there's such a thing as "acceptance by performance."
[That's not exact, but it's close enough.]
RMS & Co have taken this weird position that because it's a 'license,' it's not a contract. Their example is that you can give somebody a license to cross across your property, and that certainly isn't a contract. However, the license to cross is basically a gift which can be typically revoked at any time. If you had said "I will let you cross whenever you want if you give me $10," there still may be a "license," but it's also a contract. If you had said "I will let you cross whenever you want if you give my town $10," it's still a contract all the same.
In theory, the GPL, like any other software license, is enforced by the owner of the copyright in the code. In the U.S., this can take two forms:
(1) A breach-of-contract claim for violating the license; and
(2) A copyright infringement claim.
The main problem that you have, in either case, is what the appropriate remedy is. For copyright infringement in the U.S. you can get: (1) an injuncting barring further infringement and either (2) actual damages or (3) statutory damages. (4) attorney's fees can also be awarded.
If it's a profitable current product, then the injunction probably hurts the most. If the software is given away free (as in beer), then it's really hard to prove any actual damages. And, statutory damages are really up to the court's discretion and can range from as little as $200 to $150K. There's a lot of risk there and the legalities are not completely straight-forward.
Here's one little argument (IANAL. Don't rely on this):
If a work is a "joint work" under the Copyright Act, then the authors share the copyright and each is able to exercise the copyright holder's exclusive rights. So, each author can sub-license the entire work however he/she wants.
As a result, although one owner licenses the work under the GPL, another one may issue a proprietary license. If an open-source project is a "Joint Work," then any of its authors can license it under whatever terms, even without the agreement of the other authors. And, if that's the case, then the GPL is not worth a whole heck of a lot.
A Joint Work is "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or intedepdent parts of a unitary whole." 17 U.S.C. 101. Does an open-source project qualify? You can make a decent case that it does: when somebody publishes their code under an open-source license, they are effectively intending that others merge their contributions into the project. And, such contributions are, by nature, interdependent.
I should note that there's another interpretation, which is that each modification creates a new derivative work. In that case, there is no joint work -- each author owns what he/she contributed and the GPL has a lot more teeth.
The GPL helps some -- paragraphs 0 and 2 imply that modifications are derivative works. But, the GPL doesn't say so specifically, nor does it specifically say that you're not creating a joint work. One of the tenants of Contract Law is that you construe the contract against the drafter. The end result is that enforcing the GPL is not quite the slam-dunk case that people seem to think it is. (Again, IANAL. Don't rely on this.)
Two comments:
(1) In most areas, there are only two broadband ISPs, the Cable company and the Phone company. They're both either already in or trying to get into the video business. As a result, if your cable company forces video off their internet connection, you won't be able to go to the phone company, because the phone company will do the same thing.
(2) It seems to me that there is an antitrust problem with your ISP setting its own traffic at a higher priority, allowing it to beat out the competition by leveraging its control of the last mile internet connection into control of some other product (like video or VoIP). Antitrust law has something called the "Essential Facilities Doctrine," which basically says that if you control some facility which your competitors need in order to compete with you, then you have grant them access to it. In this case, the essential facility may be carriage at a higher priority.
The writer of the article seems to be worried most about a "two-tiered Internet" and how the networks are looking to prioritize some traffic over others. I don't see what the big deal is -- prioritization has been built into the IP protocol for decades now. Most network operators, however, have ignored the priorities.
The main reason for this is that if they started accepting priorities from their customers or peer networks, then their customers and peer networks would all set their packets to the highest priority. The end result is that traffic would be routed the same. For QoS to be of any use, there has to be a reason for people not to use it. And, money is the best way of doing this -- if you want to limit the number of high-priority packets going across your network, charge the people who put them there more than if they put low-priority packets on.
Streaming media requires a different type of service than do web pages -- if your GIF logo takes an additional 100 ms to load, you probably won't notice. If, however, a chunk of your phone call takes an extra 100 ms, you will notice it.
The problem comes in when Internet Video becomes widespread, because its need for high bandwith will overwhelm the rest of the content on the network. Prioritization won't help because almost all of the traffic will be video.
The real reason for allowing prioritization is that network operators won't increase their bandwidth without it. Think about it -- why would your cable company spend a lot of money on its Internet service so somebody else can use the Internet service to compete the cable provider's pay-per-view service? The only way the cable company will do it is if they can get a cut of the action.
That's just not right. Monopoly, by definition is all about market share. For example, consider the power company in most areas -- it's a monopoly because it has 100% of the market, regardless of its business activities.
In any case, "Hurting competitors" is what competition is all about -- if you can score a knock-out punch in the marketplace, that's generally considered to be a good thing. Do you think that Honda doesn't want to hurt GM or that Dell doesn't want to hurt Gateway?
The problem isn't monopolies in general, the problem is anticompetitive behavior -- when a company relies on something other than producing a better product (&c) to maintain or acquire a monopoly position. An example is when Microsoft got into trouble for punishing PC makers for bundling the Netscape browser.
(1) You do not need a warrant to search every area.
(2) You do generally need probable cause to support a warrant.
(3) Some searches do not require even probable cause. Heck, some searches just happen with no suspicion at all.
Examples:
You can search a car if you have probable cause, but you don't need a warrant.
If you're impounding a car, you can search the whole thing, as long as you have a policy of doing so.
If you're conducting an administrative inspection (say of a Nuclear Power Plant), you don't need a warrant.
With "Articulable suspicion," you can stop somebody, talk to them and frisk them for weapons.
Schoolchildren can be searched without a warrant and with something less than probable cause.
If you've been taken in for a DUI, the cops can take your blood without a warrant.
You can search people and cars coming into the US with much less than probable cause.
You do not need a search warrant to go through garbage somebody puts out at the curb.
You do not need a search warrant to find out the telephone numbers that somebody dialed. (You generally need one for the conversation.)
There are two generic possible default rules of copyright: (1) you have to ask permission before copying (or other uses), and (2) The copyright owner has to tell you if he denies permission.
Rule (2) used to be the default rule, at least in the U.S. -- if you didn't mark your content with the (C) logo or otherwise indicate that it is under copyright, you lost your right to sue. (That's not quite how it worked, but close enough...)
Rule (1) is now the current rule -- everything is presumed to be under copyright and does not need to be marked in order to be protected. The change isn't huge, at least from a practical standpoint, because most people marked their work before the change (doing so wasn't costly) and anybody who wants to copy would go back to the publisher in either case. And,the penalty for not marking was pretty severe. There was also not much demand for widespread copying.
It seems to me that rule (2) makes the most sense for search engines and other content aggregators, and happens to be the one that's built into the 'net. After all, most websites want to be searched -- the entire reason you put things on the web is so people will come find it and look at your website. Search engines help that. In addition, it's hugely more efficient for websites to say whether they want to be indexed or not than for the search engines to ask permission from each website. In fact, having to ask permission would make search engines impossible. And, besides, robots.txt files have been around almost since the first webserver. It's easy.
In the US, I suspect that what a search engine does would have to be considered fair use. Probably the most important of the 4 "Fair Use" factors is "the effect of the use upon the potential market for or value of the copyright material" -- providing a search capability, even if it also provides links to competitors, has to be a net positive good for a website. Two other of the 4 factors seem to lean in favor of fair use also: (1) "the purpose and character of the use" (basically, a search engine helps people find your content), and (2) "the nature of the copyrighted work" (a web page, which, by nature is intended to be searched.)
(IANAL yet.)
As to your first point, copyright is basically a grant of monopoly in that particular work. But, other works, while not identical, are certainly substitutes. If you want to buy some music and like 5 CDs that are out there, but one is priced twice as much as the others, you probably won't buy that one. A Toyota Camry and a Honda Accord are substitutes, even if they are not identical -- if the price of one rises, consumers will switch to the other. The same is true in popular music. Britney charging too much for her CD? You can buy a Christina CD instead.
I haven't seen any evidence that recording companies don't want to give away singles because of the effect on the RIAA's position. I suspect that they just don't see that as being an effective marketing technique. (Some of their bands chose to do it, though....)
If the recording industry is getting together and agreeing on what to charge for CD's, that's horizontal price fixing and is illegal. But, I don't see any evidence that they are currently doing this.
I assume that you're talking about the MPAA (Motion Picture Ass'n of America) and the RIAA (Recording Industry Ass'n of America). They're not monopolies because they don't sell any significant products. The products are made by their member companies, which compete with each other.
So longs as trade associations are not not used as vehicles to, say, agree on prices or output, they're not anti-competitive at all. It's possible to be evil without being a monopoly.
Here are a few:
1. Let's say that you modify GPL'd code and distribute the code w/o a binary. Can you cure this by: (a) stopping the distribution and/or (b) doing some sort of recall, or do you have to (c) distribute your source code now? What if you can't find everybody who you gave the original to? What if the violation is discovered in a product which you no longer distribute?
2. Actually, can you ever cure, or are you liable for copyright infringement even if you do start distributing source code? (assuming you do so once somebody sues you.)
3. Who owns the copyright to modifications?
4. Choice of law/Choice of Venue -- if you're in California and violate the GPL on software written by somebody in Florida, do they have to sue you in California? Which state's law is used to interpret the GPL? What if you're in different countries?
A big problem with the GPL is that it talks a lot about rights, but seems to have given little thought to how those rights are enforced.