No, he was talking about the specific objections in the deposition. I'm talking about objections in any deposition, and how they're not uncommon. So we aren't in disagreement based on those posts. Rather, we're replying to different parts of the parent post.
Game Over. Even if all you need in a civil case is preponderance of evidence and not absolute proof. They can't find evidence of p2p file sharing on her computer and they can't actually even say that her computer was associated with the IP address.
Well, the thing is though, a reasonable jury could still discount that evidence and prefer other evidence which does incriminate the defendant. You can't say that some piece of evidence automatically resolves the case (barring some unusual things, like a murder charge where the victim shows up, alive and well). There's still room for a jury to choose what they believe and what they don't. The preponderance question is limited to what they find believable.
For example, if all there was in this case was a thousand eyewitnesses who claimed that they personally saw the defendant download music, and there was only one eyewitness who claimed that he personally saw the defendant, and she wasn't downloading music, the jury can believe whoever they want, or none of them. That's what they're there for; to weigh the evidence and determine the actual facts.
But I do think that the evidence is pretty favorable for the defendant here. (The drive more than the mere Internet connection)
Re: objections in depositions, they're hardly uncommon. There's no judge present, and it would be nightmarish if you constantly had to bother the judge over every little thing. So if you feel you need to object, you just do it, and it's in the record, and everyone proceeds. If the objection is sustained later, then it can affect how much of the deposition remains. It generally doesn't indicate that things are tense, rather it indicates that the rules of evidence are somewhat technical and that it's important to preserve an objection lest it be lost by not objecting in a timely fashion. So by and large, it's just how these things go.
How can you fix something after you've relegated it to the scrap heap?
A moratorium isn't relegation to the scrap heap. The PTO would be directed to revisit the issue periodically, and if they found that software patents would likely yield a better result for the public than no software patents, then they'd tell Congress, and they'd mull it over. I have no desire for there to never be software patents, but I also think that they aren't appropriate now.
But it does have to be intended, at least, for recording or communicating some kind of message.
Actually, it doesn't, at least, following the statute. IIRC, Nimmer would agree with you though, that there needs to be some sort of intent to create art on the part of the artist for a work to be copyrightable, and I don't have a problem with that, though I expect that proving or disproving that would be pretty difficult most of the time. A work need only be an original creative work fixed in a tangible medium of expression in order to be copyrightable. A great deal of software meets those requirements.
However, I don't believe that any court has taken a sufficiently deep look at this issue. That is, who holds the right to authorize access? The copyright holder?
Yes, that is what the statute says.
what about the link from the thousands of copyright holders to DVDCCA?
If they're using CSS in the first place, it's a good bet that part of their agreement -- possibly with the replicator factories as a go-between -- involves giving DVDCCA the power to sub-authorize player manufacturers.
(If you really want a chain of complicated and secretive contracts, look at the credit card industry)
And what about all the non-major label music sold through iTMS? Have all the artists licensed the right to authorize access to Apple?
Well, all the copyright holders, anyway. Why do you think that only certain music is on iTMS, but not other music? Because they can only get rights to so many things.
It would be more accurate to say that the copyright holder grants authorization to anyone to access the work on the DVD provided that that access is carried out only through the use of approved equipment. In effect, it is as if the right is given to the player, since it certainly isn't given to a person who owns or possesses the disc (since mere ownership or possession is not sufficient to get access, and it doesn't even matter if the disc is lawfully made or not).
It's a bit like a bearer bond or an endorsed check; no specific person has a right to them, rather, the right follows the instrument, wherever it goes. The analogy breaks down in that in the case of DVDs, if the right was attached to the disc, the player wouldn't matter, but you can see how a right can be passed through a token, rather than to parties in a more direct fashion.
It is consistent with the FBI warning wording at the begining of such media.
Which isn't actually the law, and is practically designed to intimidate and confuse people, not to accurately tell people what they can and cannot lawfully do. Ignore it. Don't ignore the law, but ignore the idiotic propaganda warnings.
Well, then you are claiming that I am buying something I have absolutely no right to use.
No I'm not. First, because you have many rights as to the DVD that have nothing to do with accessing the content within, e.g. hanging it from your rear view mirror. Second, it's not that you have a right to access the content based on your ownership of the copy, it's that you can only lawfully access the content if you use authorized means to do so. So while it might involve an extra step, you can still lawfully access the content; it's not as though you can never watch the movie on the disc.
I don't think so. For example, a radio station needs a license to perform music on the air, but they can buy ordinary retail CDs from a record store if they want to. The blurb is really just there to intimidate people; it doesn't have to be there and it doesn't really refer to anything special. I don't know why you keep stretching, looking for some other justification for it.
Now it is true that there was a license to the manufacturer who made the DVDs. But that's just a contract; it wouldn't involve anything special included on the disc. And at that point, the DVDs are probably sold to a wholesale distributor that then sells them to retail outlets, so first sale would govern that, and no license is needed there either.
It's also probably violating the patents, but patent law is useless against individuals, which is why the MPAA needed the DMCA provision.
There is no exception for individuals under patent law, actually. But patents require disclosure, and on the whole, they'd prefer to maintain some obscurity, so they don't use patents quite so much in the encryption and decryption stages. Also, patents expire more quickly than copyrights.
I'd be surprised if, in most cases, the DVD made for retail differed at all from the DVDs made for rental. In fact, they even tend to hit shelves at the same time. And in any event, it's also legal to rent any lawfully made copy of a DVD without special permission, so it would only matter for the big chains that could negotiate early access anyway. Also, the warning wouldn't need to be there for the distributor -- they would have a contract that would lay out all the terms.
No, it's there to be read by end users, who will hopefully not question the strong wording.
What I don't understand is why, if I've encoded something using AACS, that I own the copyright to, why I'm not entitled to give permission to any and all to use an AACS decryption program to decrypt my copyrighted work. Wouldn't that basically make possession and distribution of such a decryption program be unaffected by the provisions of the DMCA (since it would be "with the authorization of the copyright owner")?
Or, in the world of regular DVDs, if you made CSS-encoded DVDs, couldn't you authorize people to use DeCSS, which would legitimize it? Feel free to give it a shot, but I doubt a court will go for it in the real world.
Doing so doesn't automatically make any 3DES or AES decryption program a DMCA violation, that would be silly!
A lot depends on the reasons for which someone distributes a copy. If RSA distributes a general-purpose decryption program using 3DES, then they'll be fine, even though it could be used against 3DES encrypted movies. If Doom9 does it, then they're not going to be fine, since they really only ever distribute anything for it to be used in conjunction with movies. That they might even be identical programs isn't relevant. Intent isn't something that is found in the bits of the program, but the law can still recognize and infer from the circumstances.
If you reverse-engineer the principle necessary to decrypt it, it doesn't matter that to get the *official* mechanism for decoding it, you have to agree to the license terms.
That is true, so long as by "it doesn't matter" you also think it doesn't matter that you'd be breaking the law. Many people would disagree with you, though.
I bought it, I can decode it any way I like, including into gibberish, or into a recognizable image.
And yet, the law disagrees with you.
You can't slap an agreement onto a printed book saying, "Reader is authorized to decode the letters and words on these pages only with SupraVision (TM) goggles and an Oxford English Dictionary purchased from an authorized dealer", especially if the purchaser did not have to sign a contract to make the purchase. Sheesh, there isn't even a (probably unenforceable) shrinkwrap EULA in DVDs.
Actually, you probably could do that, in the present legal environment. But in any event, I am not talking about EULAs or terms of sale, and so you are making a big mistake even bringing it up and confusing the issue.
I am saying that if a copyrighted work has had an access control measure applied to it, then the copyright holder can grant or withhold authorization to access that work as he wishes. He does not have to grant it to people who lawfully own a copy of the work! He can grant it to people with a middle initial that is a vowel. The law backs him up on this. It is not a matter of contract or sales law.
The terms you describe apply to the manufacturers of DVD players wishing to display the "DVD" trademark symbol and claiming that their product conforms with the standard.
That also comes with obeying the rules set forth by the DVDCCA, I'm sure. However, you would be a fool to ignore what I wrote or to assume that I was talking only about trademark issues.
It is illegal for you to watch the DVD without authorization. They will not give you, personally, authorization. They will not give you, as the owner of the disc, or as the possessor of the disc, authorization.
So the only way to watch the DVD legally, is to get authorization by virtue of using an authorized player.
So yes, you are very much affected by what the companies do amongst themselves. And they didn't need to create any laws beyond 17 USC 1201 et seq.
I would say (and IANAL) that when a customer buys a DVD (s)he also obtains the implicit right to view it. It's not the consumer's issue how that technology is licensed.
It is illegal for the consumer to access the work, if there is an access control, if the consumer lacks authorization. The studios never give consumers authorization (and the implied authorization argument has, so far, fallen flat). Rather, they authorize devices, which can be used by people who themselves lack authorization. That is, the authorization is an attribute which flows through the player, rather than the disk. (Though it's still attached to the player -- the owner doesn't have authorization, save for with regard to that player; a possessor of the player has authorization with regard to that player, even if he isn't the owner, etc.)
From the programmers' point of view, as long as the code that they write isn't taken from a licensed user of the software, they're not violating copyright -
This conversation is about access and circumvention. We are not talking about copyright, which is a different, though related subject.
and as long as the primary purpose of the code is simply to view the DVD, then I think that that (at least arguably) keeps them on the good side of the DMCA.
That argument has been tried, and it has failed. Feel free to keep trying a loser argument, but don't be surprised when it keeps on being a loser. I'm not suggesting how I want things to be, I'm describing how things are. You'll have better luck coping with this, and in changing things for the better, if you deal with reality, rather than pretend that things presently are how you wish they would be.
You wouldn't think so, given the massive power-grab going on.
Meh. There's not that much expansion in this aspect of copyright, though we had a bit recently. Scaling back the derivative right (which is over a century old) is probably the best reform as far as the rights bundle goes. Yet sadly, most people who support reform have looked to term length and virtually nothing else. The length of copyright is key, but so is the scope. We need to reform both. Just one or the other won't be enough.
So there's no compulsory or mechanical license involved? Interesting. That suggests that the blurb appearing at the front of every movie ("This motion picture is licensed for private exhibition only, blablabla...") is misleading, since you say no actual license is involved.
They're under no obligation to be truthful, and in any event that blurb is just meant to restate the law in a manner highly favorable to them; no one would ever reasonably perceive it as a license. Take a look at 17 USC 106; it contains the major rights that comprise copyright. Private performance is not among them, nor does it crop up elsewhere.
It seems we are in rather closer agreement than was initially apparent. I extend my apologies.
And I'm sure that you sincerely think that, but the law does not work the way you think. In fact, if someone who is working for you acts to your benefit by doing something illegal, and you could have controlled him, even though you don't actually know what he's doing, then yes, you can be held responsible for what he did. Agency law is great fun, and you should read up on it, since you don't seem to know much about it right now.
A license to perform the work in a private residence is concomitant with the purchase of a copy.
Utterly and hilariously wrong.
No such license ever, ever, ever exists. The reason being that it is impossible to license something that you haven't got to begin with. Copyright is a limited collection of rights; it does not apply to every single thing in connection with a work. In particular, the right of performance is a part of copyright. But only of public performance. Copyright holders have no right whatsoever to control private performance. Not having that right, they cannot license others.
Everyone has the right to privately perform any damn thing that they like. It's a part of free speech, and is not limited by copyright. Public performances are what's limited by copyright. Public performances are the performances that can be licensed.
If you're going to complain about my knowledge of the law, it would help if you knew something about it first.
In any event, we're not talking about copyright law, per se. We're talking about circumvention law, which for all anyone knows isn't even pursuant to the copyright power. It is its own beast, and in the case of DVDs at least, it operates as I have described it. The UCC is irrelevant to this discussion, as is anything other than 17 USC 1201 et seq.
I agree that much of the DMCA is very bad, but I think that it's vital that people understand just how bad, without suffering from any misconceptions, such as yours, in order to get support for copyright laws that we can actually be happy with, if not proud of.
But the patent system is also intended to protect the rights of inventors and authors, by granting them property rights to inventions and creative works.
No, you're wrong. It protects them rather than protecting, say, manufacturers and publishers, partially because it wouldn't really be as fair, and partially because we really only need to encourage invention and authorship; manufacture and publication will follow naturally according to market dictates, and don't need encouragement. (Indeed; pirates are merely unauthorized manufacturers and publishers. An invention or work needs no patent or copyright if pirates don't care about it, and if they do care about it, then that indicates that there are willing manufacturers or publishers!)
Hence the use of the term THEIR in that same constitutional passage.
Like I said, 'their' simply allocates it to one party rather than to another. If you want a magic word, you picked the wrong one. You should have been looking at 'securing.'
But it doesn't matter, since there are no preexisting rights in publicly available works or inventions anyway. If you can keep it secret, then that's something. Otherwise, you have to play by the rules the public is willing to put up with. And we only put up with encouragements. Not any of the other crap you have blathered on about.
Heh. Property isn't really a tangible thing, it's a right that pertains to a thing. In fact, aside from that the term 'intellectual property' is incredibly deceptive and confusing, the thing pertinent to this discussion that could best be considered 'intellectual property' is in fact, a patent itself. The invention to which the patent pertains is not property of any kind. And if there can be an embodiment of the patent, it's often a tangible item which would fall under the control of personal property law, just as a comb or an orange would.
But getting back to your comment, you're wrong. The federal Constitution is quite clear: patent law exists in order to promote the progress of the useful arts (i.e. applied technology). It operates in much the same way that a municipal cable tv monopoly works to promote cable tv in the municipality. The idea is that in a free market, while you might invent something, everyone else could copy the invention without having to have paid the costs of research and development. This means that it's not economically worth it to you to bother to invent the thing in the first place. Since it is good for the public for new inventions to be invented and brought to market and to have their workings disclosed, we grant an artificial monopoly over the invention (if it meets certain criteria) so that you needn't face competition immediately and can recoup your costs and profit, which is your incentive to invent the thing.
But no one gives a crap about you. You, the inventor, are just a tedious and annoying thing that we only tolerate because we get desirable inventions out of you. Kind of like a dairy cow, which is smelly and costly to keep alive and healthy, but which provides milk. If we could get the milk in some easier and cheaper way, we'd do it in a heartbeat. The cow -- and the inventor -- is just a necessary evil. Likewise, if you would invent things for free, without regard for the incentive of a patent, then we'd be happy to not give you one. Patents are bad, and only tolerable when we get something in exchange for them that is so good that the good of it outweighs the bad that is inherent in the patent.
It doesn't encourage the advancement of computer science or research.
True. OTOH, while software patents certainly could encourage the advancement of computer science, at the present time I don't think that they actually do. There are enough encouragements other than patents, and enough negative effects of the patents (which are always part and parcel of patents, but are supposed to be outweighed by the benefits of patents) that it is a field, like business methods, where patents are not a good idea. Perhaps this will change in the future, and then I'd be happy to revisit the issue. But for now, we need to get rid of software patents.
copyright only protects "expressions," which, frankly, software is not.
A specific program is certainly an expression of the underlying idea, in just the same way that a totally factual book that describes a historical event is an expression of the ideas presented there. Expression, in the copyright context, doesn't mean that there has to be some sort of emotional value or whatnot. It doesn't even have to be good.
Yes, so long as you are only wondering if you would be circumvention an access control measure (you would not be), and don't care about whether you would be infringing on a copyright (you would be).
Admit it--you just want to pirate music without any consequences.
Who the hell wouldn't want that? I would like very much to have a complete copy of the sum of human knowledge -- every book, every song, every film, every picture -- at my disposal. And I think that most people would probably like the same. Even if we only used a small fraction of it, it would be a great thing to have. And to get it for free (or nearly so) would be even better, since it's the cost of the thing that is generally the big obstacle to having it.
Are you saying that you don't want a copy of everything there is, for free?
Remember: copyright is like a necessary evil; it does a bad thing (temporarily and partially restricting the free flow of knowledge and culture) for a good reason (to encourage the creation of more knowledge and culture which can be partially shared immediately, and fully shared after a while). If implemented properly, the good outweighs the bad. But copyright is never a tolerable or desirable thing for its own sake, and it is always wrong to support copyright in cases where it would not produce more good results than bad results.
Piracy is basically a good thing (it is the free flow of knowledge and culture) but which can have bad, or more accurately, self-defeating, results (in that it reduces the encouraging effect of copyright). Still, if the good of piracy happened to outweigh the bad -- i.e. if the good of freely flowing information was better than the reduction of encouragement to create -- then piracy would be preferable to copyright.
We don't have to have absolute copyright or absolute piracy. We can vary them. We could arbitrarily say that copyright applied on weekdays, and not on weekends, if we wanted to. If this produced a better outcome than seven days a week of either copyright or piracy, then it would be what we should do (barring something better yet).
So maybe it would be a good idea to allow ordinary individuals, acting non-commercially, to pirate music without consequences, accepting that there would be a bad effect in that less music might get made, and accepting that there might be a good effect in that people would be more free vis-a-vis music, while we still kept copyright for commercial purposes as well as for corporate entities.
Don't dismiss the idea out of hand, and even if you ultimately don't think that it would produce a better outcome than the current system, if you think that there could possibly be any improvement to the current system -- particularly one that people could live with and which they'd be inclined to do anyway, even if there weren't a law about it -- then surely it would be worthwhile to consider it.
To quote George Carlin's description of the current generation: "Gimme that, it's mine! Gimme that, it's mine!"
Meh. I agree, that people are greedy. People who listen to music are greedy, and want free music. People who make music are greedy, and want to be paid for their music. Neither side is good or bad. Copyright, as a utilitarian system, handles this adeptly. The genius of copyright is that you can appeal to the long-term greed of music listeners by getting them to suffer some short-term deprivations, and you can use those deprivations to appeal to the short-term greed of the music creators, who suffer long-term deprivations. Everyone ends up a winner, so long as you do it right. But for decades now, we haven't done it right, and it's getting worse. The reason that piracy wasn't such a big thing in the past is not because people acted differently. People have always acted the same. It's because more things were legal, so the same sort of conduct in the past was unremarkable, while now it is notable. Conduct hasn't changed, but the laws around it have, and not for the better.
That's not a good defense at all, actually, since the mere possibility that someone else did it over the open WAP isn't good enough to get you off the hook; it has to be a probability, such that someone else is more likely to have done it than you. Absolute proof is not needed, only probable proof.
Still, I suppose that any disputed facts that can get you to a jury couldn't hurt in these cases; the MPAA and RIAA don't like to deal with them, and interestingly enough will go to significant lengths (like asking for minimal damages) to avoid having any jury questions.
Not really. Books are digital, they're just not online or (generally) machine-readable. Each letter is discrete. There's no continuum, no letters that are about one-quarter A and three-quarters B.
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No, he was talking about the specific objections in the deposition. I'm talking about objections in any deposition, and how they're not uncommon. So we aren't in disagreement based on those posts. Rather, we're replying to different parts of the parent post.
Game Over. Even if all you need in a civil case is preponderance of evidence and not absolute proof. They can't find evidence of p2p file sharing on her computer and they can't actually even say that her computer was associated with the IP address.
Well, the thing is though, a reasonable jury could still discount that evidence and prefer other evidence which does incriminate the defendant. You can't say that some piece of evidence automatically resolves the case (barring some unusual things, like a murder charge where the victim shows up, alive and well). There's still room for a jury to choose what they believe and what they don't. The preponderance question is limited to what they find believable.
For example, if all there was in this case was a thousand eyewitnesses who claimed that they personally saw the defendant download music, and there was only one eyewitness who claimed that he personally saw the defendant, and she wasn't downloading music, the jury can believe whoever they want, or none of them. That's what they're there for; to weigh the evidence and determine the actual facts.
But I do think that the evidence is pretty favorable for the defendant here. (The drive more than the mere Internet connection)
Re: objections in depositions, they're hardly uncommon. There's no judge present, and it would be nightmarish if you constantly had to bother the judge over every little thing. So if you feel you need to object, you just do it, and it's in the record, and everyone proceeds. If the objection is sustained later, then it can affect how much of the deposition remains. It generally doesn't indicate that things are tense, rather it indicates that the rules of evidence are somewhat technical and that it's important to preserve an objection lest it be lost by not objecting in a timely fashion. So by and large, it's just how these things go.
How can you fix something after you've relegated it to the scrap heap?
A moratorium isn't relegation to the scrap heap. The PTO would be directed to revisit the issue periodically, and if they found that software patents would likely yield a better result for the public than no software patents, then they'd tell Congress, and they'd mull it over. I have no desire for there to never be software patents, but I also think that they aren't appropriate now.
But it does have to be intended, at least, for recording or communicating some kind of message.
Actually, it doesn't, at least, following the statute. IIRC, Nimmer would agree with you though, that there needs to be some sort of intent to create art on the part of the artist for a work to be copyrightable, and I don't have a problem with that, though I expect that proving or disproving that would be pretty difficult most of the time. A work need only be an original creative work fixed in a tangible medium of expression in order to be copyrightable. A great deal of software meets those requirements.
However, I don't believe that any court has taken a sufficiently deep look at this issue. That is, who holds the right to authorize access? The copyright holder?
Yes, that is what the statute says.
what about the link from the thousands of copyright holders to DVDCCA?
If they're using CSS in the first place, it's a good bet that part of their agreement -- possibly with the replicator factories as a go-between -- involves giving DVDCCA the power to sub-authorize player manufacturers.
(If you really want a chain of complicated and secretive contracts, look at the credit card industry)
And what about all the non-major label music sold through iTMS? Have all the artists licensed the right to authorize access to Apple?
Well, all the copyright holders, anyway. Why do you think that only certain music is on iTMS, but not other music? Because they can only get rights to so many things.
It would be more accurate to say that the copyright holder grants authorization to anyone to access the work on the DVD provided that that access is carried out only through the use of approved equipment. In effect, it is as if the right is given to the player, since it certainly isn't given to a person who owns or possesses the disc (since mere ownership or possession is not sufficient to get access, and it doesn't even matter if the disc is lawfully made or not).
It's a bit like a bearer bond or an endorsed check; no specific person has a right to them, rather, the right follows the instrument, wherever it goes. The analogy breaks down in that in the case of DVDs, if the right was attached to the disc, the player wouldn't matter, but you can see how a right can be passed through a token, rather than to parties in a more direct fashion.
It is consistent with the FBI warning wording at the begining of such media.
Which isn't actually the law, and is practically designed to intimidate and confuse people, not to accurately tell people what they can and cannot lawfully do. Ignore it. Don't ignore the law, but ignore the idiotic propaganda warnings.
Well, then you are claiming that I am buying something I have absolutely no right to use.
No I'm not. First, because you have many rights as to the DVD that have nothing to do with accessing the content within, e.g. hanging it from your rear view mirror. Second, it's not that you have a right to access the content based on your ownership of the copy, it's that you can only lawfully access the content if you use authorized means to do so. So while it might involve an extra step, you can still lawfully access the content; it's not as though you can never watch the movie on the disc.
I don't think so. For example, a radio station needs a license to perform music on the air, but they can buy ordinary retail CDs from a record store if they want to. The blurb is really just there to intimidate people; it doesn't have to be there and it doesn't really refer to anything special. I don't know why you keep stretching, looking for some other justification for it.
Now it is true that there was a license to the manufacturer who made the DVDs. But that's just a contract; it wouldn't involve anything special included on the disc. And at that point, the DVDs are probably sold to a wholesale distributor that then sells them to retail outlets, so first sale would govern that, and no license is needed there either.
It's also probably violating the patents, but patent law is useless against individuals, which is why the MPAA needed the DMCA provision.
There is no exception for individuals under patent law, actually. But patents require disclosure, and on the whole, they'd prefer to maintain some obscurity, so they don't use patents quite so much in the encryption and decryption stages. Also, patents expire more quickly than copyrights.
I'd be surprised if, in most cases, the DVD made for retail differed at all from the DVDs made for rental. In fact, they even tend to hit shelves at the same time. And in any event, it's also legal to rent any lawfully made copy of a DVD without special permission, so it would only matter for the big chains that could negotiate early access anyway. Also, the warning wouldn't need to be there for the distributor -- they would have a contract that would lay out all the terms.
No, it's there to be read by end users, who will hopefully not question the strong wording.
What I don't understand is why, if I've encoded something using AACS, that I own the copyright to, why I'm not entitled to give permission to any and all to use an AACS decryption program to decrypt my copyrighted work. Wouldn't that basically make possession and distribution of such a decryption program be unaffected by the provisions of the DMCA (since it would be "with the authorization of the copyright owner")?
Or, in the world of regular DVDs, if you made CSS-encoded DVDs, couldn't you authorize people to use DeCSS, which would legitimize it? Feel free to give it a shot, but I doubt a court will go for it in the real world.
Doing so doesn't automatically make any 3DES or AES decryption program a DMCA violation, that would be silly!
A lot depends on the reasons for which someone distributes a copy. If RSA distributes a general-purpose decryption program using 3DES, then they'll be fine, even though it could be used against 3DES encrypted movies. If Doom9 does it, then they're not going to be fine, since they really only ever distribute anything for it to be used in conjunction with movies. That they might even be identical programs isn't relevant. Intent isn't something that is found in the bits of the program, but the law can still recognize and infer from the circumstances.
If you reverse-engineer the principle necessary to decrypt it, it doesn't matter that to get the *official* mechanism for decoding it, you have to agree to the license terms.
That is true, so long as by "it doesn't matter" you also think it doesn't matter that you'd be breaking the law. Many people would disagree with you, though.
I bought it, I can decode it any way I like, including into gibberish, or into a recognizable image.
And yet, the law disagrees with you.
You can't slap an agreement onto a printed book saying, "Reader is authorized to decode the letters and words on these pages only with SupraVision (TM) goggles and an Oxford English Dictionary purchased from an authorized dealer", especially if the purchaser did not have to sign a contract to make the purchase. Sheesh, there isn't even a (probably unenforceable) shrinkwrap EULA in DVDs.
Actually, you probably could do that, in the present legal environment. But in any event, I am not talking about EULAs or terms of sale, and so you are making a big mistake even bringing it up and confusing the issue.
I am saying that if a copyrighted work has had an access control measure applied to it, then the copyright holder can grant or withhold authorization to access that work as he wishes. He does not have to grant it to people who lawfully own a copy of the work! He can grant it to people with a middle initial that is a vowel. The law backs him up on this. It is not a matter of contract or sales law.
The terms you describe apply to the manufacturers of DVD players wishing to display the "DVD" trademark symbol and claiming that their product conforms with the standard.
That also comes with obeying the rules set forth by the DVDCCA, I'm sure. However, you would be a fool to ignore what I wrote or to assume that I was talking only about trademark issues.
It is illegal for you to watch the DVD without authorization. They will not give you, personally, authorization. They will not give you, as the owner of the disc, or as the possessor of the disc, authorization.
So the only way to watch the DVD legally, is to get authorization by virtue of using an authorized player.
So yes, you are very much affected by what the companies do amongst themselves. And they didn't need to create any laws beyond 17 USC 1201 et seq.
Read this. Law and math behave in very different ways, and I've found that this is a great essay for helping to bridge the gap.
I would say (and IANAL) that when a customer buys a DVD (s)he also obtains the implicit right to view it. It's not the consumer's issue how that technology is licensed.
It is illegal for the consumer to access the work, if there is an access control, if the consumer lacks authorization. The studios never give consumers authorization (and the implied authorization argument has, so far, fallen flat). Rather, they authorize devices, which can be used by people who themselves lack authorization. That is, the authorization is an attribute which flows through the player, rather than the disk. (Though it's still attached to the player -- the owner doesn't have authorization, save for with regard to that player; a possessor of the player has authorization with regard to that player, even if he isn't the owner, etc.)
From the programmers' point of view, as long as the code that they write isn't taken from a licensed user of the software, they're not violating copyright -
This conversation is about access and circumvention. We are not talking about copyright, which is a different, though related subject.
and as long as the primary purpose of the code is simply to view the DVD, then I think that that (at least arguably) keeps them on the good side of the DMCA.
That argument has been tried, and it has failed. Feel free to keep trying a loser argument, but don't be surprised when it keeps on being a loser. I'm not suggesting how I want things to be, I'm describing how things are. You'll have better luck coping with this, and in changing things for the better, if you deal with reality, rather than pretend that things presently are how you wish they would be.
You wouldn't think so, given the massive power-grab going on.
Meh. There's not that much expansion in this aspect of copyright, though we had a bit recently. Scaling back the derivative right (which is over a century old) is probably the best reform as far as the rights bundle goes. Yet sadly, most people who support reform have looked to term length and virtually nothing else. The length of copyright is key, but so is the scope. We need to reform both. Just one or the other won't be enough.
So there's no compulsory or mechanical license involved? Interesting. That suggests that the blurb appearing at the front of every movie ("This motion picture is licensed for private exhibition only, blablabla...") is misleading, since you say no actual license is involved.
They're under no obligation to be truthful, and in any event that blurb is just meant to restate the law in a manner highly favorable to them; no one would ever reasonably perceive it as a license. Take a look at 17 USC 106; it contains the major rights that comprise copyright. Private performance is not among them, nor does it crop up elsewhere.
It seems we are in rather closer agreement than was initially apparent. I extend my apologies.
De nada.
And I'm sure that you sincerely think that, but the law does not work the way you think. In fact, if someone who is working for you acts to your benefit by doing something illegal, and you could have controlled him, even though you don't actually know what he's doing, then yes, you can be held responsible for what he did. Agency law is great fun, and you should read up on it, since you don't seem to know much about it right now.
A license to perform the work in a private residence is concomitant with the purchase of a copy.
Utterly and hilariously wrong.
No such license ever, ever, ever exists. The reason being that it is impossible to license something that you haven't got to begin with. Copyright is a limited collection of rights; it does not apply to every single thing in connection with a work. In particular, the right of performance is a part of copyright. But only of public performance. Copyright holders have no right whatsoever to control private performance. Not having that right, they cannot license others.
Everyone has the right to privately perform any damn thing that they like. It's a part of free speech, and is not limited by copyright. Public performances are what's limited by copyright. Public performances are the performances that can be licensed.
If you're going to complain about my knowledge of the law, it would help if you knew something about it first.
In any event, we're not talking about copyright law, per se. We're talking about circumvention law, which for all anyone knows isn't even pursuant to the copyright power. It is its own beast, and in the case of DVDs at least, it operates as I have described it. The UCC is irrelevant to this discussion, as is anything other than 17 USC 1201 et seq.
I agree that much of the DMCA is very bad, but I think that it's vital that people understand just how bad, without suffering from any misconceptions, such as yours, in order to get support for copyright laws that we can actually be happy with, if not proud of.
But the patent system is also intended to protect the rights of inventors and authors, by granting them property rights to inventions and creative works.
No, you're wrong. It protects them rather than protecting, say, manufacturers and publishers, partially because it wouldn't really be as fair, and partially because we really only need to encourage invention and authorship; manufacture and publication will follow naturally according to market dictates, and don't need encouragement. (Indeed; pirates are merely unauthorized manufacturers and publishers. An invention or work needs no patent or copyright if pirates don't care about it, and if they do care about it, then that indicates that there are willing manufacturers or publishers!)
Hence the use of the term THEIR in that same constitutional passage.
Like I said, 'their' simply allocates it to one party rather than to another. If you want a magic word, you picked the wrong one. You should have been looking at 'securing.'
But it doesn't matter, since there are no preexisting rights in publicly available works or inventions anyway. If you can keep it secret, then that's something. Otherwise, you have to play by the rules the public is willing to put up with. And we only put up with encouragements. Not any of the other crap you have blathered on about.
Heh. Property isn't really a tangible thing, it's a right that pertains to a thing. In fact, aside from that the term 'intellectual property' is incredibly deceptive and confusing, the thing pertinent to this discussion that could best be considered 'intellectual property' is in fact, a patent itself. The invention to which the patent pertains is not property of any kind. And if there can be an embodiment of the patent, it's often a tangible item which would fall under the control of personal property law, just as a comb or an orange would.
But getting back to your comment, you're wrong. The federal Constitution is quite clear: patent law exists in order to promote the progress of the useful arts (i.e. applied technology). It operates in much the same way that a municipal cable tv monopoly works to promote cable tv in the municipality. The idea is that in a free market, while you might invent something, everyone else could copy the invention without having to have paid the costs of research and development. This means that it's not economically worth it to you to bother to invent the thing in the first place. Since it is good for the public for new inventions to be invented and brought to market and to have their workings disclosed, we grant an artificial monopoly over the invention (if it meets certain criteria) so that you needn't face competition immediately and can recoup your costs and profit, which is your incentive to invent the thing.
But no one gives a crap about you. You, the inventor, are just a tedious and annoying thing that we only tolerate because we get desirable inventions out of you. Kind of like a dairy cow, which is smelly and costly to keep alive and healthy, but which provides milk. If we could get the milk in some easier and cheaper way, we'd do it in a heartbeat. The cow -- and the inventor -- is just a necessary evil. Likewise, if you would invent things for free, without regard for the incentive of a patent, then we'd be happy to not give you one. Patents are bad, and only tolerable when we get something in exchange for them that is so good that the good of it outweighs the bad that is inherent in the patent.
It doesn't encourage the advancement of computer science or research.
True. OTOH, while software patents certainly could encourage the advancement of computer science, at the present time I don't think that they actually do. There are enough encouragements other than patents, and enough negative effects of the patents (which are always part and parcel of patents, but are supposed to be outweighed by the benefits of patents) that it is a field, like business methods, where patents are not a good idea. Perhaps this will change in the future, and then I'd be happy to revisit the issue. But for now, we need to get rid of software patents.
copyright only protects "expressions," which, frankly, software is not.
A specific program is certainly an expression of the underlying idea, in just the same way that a totally factual book that describes a historical event is an expression of the ideas presented there. Expression, in the copyright context, doesn't mean that there has to be some sort of emotional value or whatnot. It doesn't even have to be good.
Yes, so long as you are only wondering if you would be circumvention an access control measure (you would not be), and don't care about whether you would be infringing on a copyright (you would be).
Freeloading isn't a bad thing. In fact, it's the ultimate goal of copyright.
Admit it--you just want to pirate music without any consequences.
Who the hell wouldn't want that? I would like very much to have a complete copy of the sum of human knowledge -- every book, every song, every film, every picture -- at my disposal. And I think that most people would probably like the same. Even if we only used a small fraction of it, it would be a great thing to have. And to get it for free (or nearly so) would be even better, since it's the cost of the thing that is generally the big obstacle to having it.
Are you saying that you don't want a copy of everything there is, for free?
Remember: copyright is like a necessary evil; it does a bad thing (temporarily and partially restricting the free flow of knowledge and culture) for a good reason (to encourage the creation of more knowledge and culture which can be partially shared immediately, and fully shared after a while). If implemented properly, the good outweighs the bad. But copyright is never a tolerable or desirable thing for its own sake, and it is always wrong to support copyright in cases where it would not produce more good results than bad results.
Piracy is basically a good thing (it is the free flow of knowledge and culture) but which can have bad, or more accurately, self-defeating, results (in that it reduces the encouraging effect of copyright). Still, if the good of piracy happened to outweigh the bad -- i.e. if the good of freely flowing information was better than the reduction of encouragement to create -- then piracy would be preferable to copyright.
We don't have to have absolute copyright or absolute piracy. We can vary them. We could arbitrarily say that copyright applied on weekdays, and not on weekends, if we wanted to. If this produced a better outcome than seven days a week of either copyright or piracy, then it would be what we should do (barring something better yet).
So maybe it would be a good idea to allow ordinary individuals, acting non-commercially, to pirate music without consequences, accepting that there would be a bad effect in that less music might get made, and accepting that there might be a good effect in that people would be more free vis-a-vis music, while we still kept copyright for commercial purposes as well as for corporate entities.
Don't dismiss the idea out of hand, and even if you ultimately don't think that it would produce a better outcome than the current system, if you think that there could possibly be any improvement to the current system -- particularly one that people could live with and which they'd be inclined to do anyway, even if there weren't a law about it -- then surely it would be worthwhile to consider it.
To quote George Carlin's description of the current generation: "Gimme that, it's mine! Gimme that, it's mine!"
Meh. I agree, that people are greedy. People who listen to music are greedy, and want free music. People who make music are greedy, and want to be paid for their music. Neither side is good or bad. Copyright, as a utilitarian system, handles this adeptly. The genius of copyright is that you can appeal to the long-term greed of music listeners by getting them to suffer some short-term deprivations, and you can use those deprivations to appeal to the short-term greed of the music creators, who suffer long-term deprivations. Everyone ends up a winner, so long as you do it right. But for decades now, we haven't done it right, and it's getting worse. The reason that piracy wasn't such a big thing in the past is not because people acted differently. People have always acted the same. It's because more things were legal, so the same sort of conduct in the past was unremarkable, while now it is notable. Conduct hasn't changed, but the laws around it have, and not for the better.
That's not a good defense at all, actually, since the mere possibility that someone else did it over the open WAP isn't good enough to get you off the hook; it has to be a probability, such that someone else is more likely to have done it than you. Absolute proof is not needed, only probable proof.
Still, I suppose that any disputed facts that can get you to a jury couldn't hurt in these cases; the MPAA and RIAA don't like to deal with them, and interestingly enough will go to significant lengths (like asking for minimal damages) to avoid having any jury questions.
Not really. Books are digital, they're just not online or (generally) machine-readable. Each letter is discrete. There's no continuum, no letters that are about one-quarter A and three-quarters B.