Well, I think it's just a screwup with regard to what the people on the business end of it are calling it, really. It can't be a 512 takedown notice, since the program is not infringing even though it pretty certainly is a circumvention device. But it can be a regular old cease and desist notice. The main difference is that for 512 takedown notices, ISPs do what they're told in order to protect themselves from being sued, in accordance with the law that protects them so long as they obey the notices. For C&Ds, the ISP isn't protected anyway, but will probably have an easier time of it if they do what they're told. I doubt the lawyers that sent it actually called it a takedown notice in the context of 512.
If I buy a HD-DVD, they're giving me permission to watch it. To do so, I have to decode it. I signed nothing at the time of purchase promising to watch it only with players they approve of. By all logic, they HAVE given me permission to decrypt it.
Not quite.
It's a bit easier to use DVDs as an example for this, rather than Bluray or HDDVD, since they're not as well documented.
The movie studios encrypted discs with CSS. They then gave the DVDCCA the power to grant authorizations to decrypt and access those movies. The DVDCCA in turn authorized the player manufacturers to build players that could handle that decryption, provided that they conformed to certain requirements (e.g. respect region codes, add macrovison to the outputs). The permission is granted, therefore, to the disc-playing machine, not the owner or user of the machine, nor the owner or user of the disc itself.
This is why, when you watch a DVD on an approved player, it is lawful with regards to access-controls, regardless of whether the DVD is lawfully made and possessed, lawfully made but stolen, or unlawfully made (and yet still encrypted for some reason). But it is unlawful to watch a DVD on an unapproved player, regardless of the provenance of the DVD.
So no, when you bought the DVD, you did not get permission to decrypt it. But so long as your player is approved, then it isn't unlawful for you to use it -- or for anyone to use it -- without having to be given permission themselves.
I'm pretty confident that the newer generation formats work in substantially the same way.
My county library makes books available for electronic checkout (essentially, a download). When you are done with the e-book, it's checked back into the library. This appears to be legal fair use in terms of copyright.
It could be, but I'm confident that they aren't relying on fair use; they have paid for a license to be able to do this. (And when the license runs out, they stop being able to do this, which IMO makes it rather wasteful as compared to getting hardcopies)
The distinctions aren't really relevant. For the purposes of the replicator discussion, copyrights and patents are basically the same thing, since our ability to cheaply make copies of things will have increased into interesting new territories. And trademarks merely deal with non-useful source identifiers, which could surely be removed from the replicated cars, probably in the process of replication, if it turned out to be a headache at all.
Of course, the car companies would like replicators for their own use, just not for their customers. They'd be able to fire all of their unionized employees, except for the members of the Allied Replicator Operators, get rid of factories and distribution systems, and just set up replicators at the dealers. Just as with copyright, there has never been a new technology that pirates could use, but publishers couldn't; publishers want a monopoly on the new technologies, is all.
Yes, it is legal, but it's not quite as advantageously positioned as a public library. And there are still private libraries. For example, here in Boston, we have the Boston Athenæum.
If I borrow a CD or DVD from the library and play it on my computer, I am also making a copy on my computer.
Yes, and under those circumstances, making the copy for the purposes of playing it, likely falls under an implied license or fair use. But making a copy to keep, or making a copy from the Internet generally, would be different circumstances. That they're all copies on the computer might make them seem to be the same, but trust me, they're very different, since the law can recognize and deal with things like the differing provenances of bit-for-bit identical copies.
No, the library makes their copies available for lawful distribution, whereas a fileserver is making their copies available for unlawful distribution (or more techically, unlawful performance or display). The real issue is just that the Copyright Act only makes actual infringements illegal, but doesn't make attempted infringements illegal. Nor does it make the offering of aid in an infringement illegal if there is no completed infringement. The question is whether the court here will go further than the actual language of the Act.
Meh. I think you'd win. It's not believable, and if no one reasonably believes you, then his reputation can't be harmed, which is what the law is really about. But you're right in that 'opinion' is not necessarily a magic word. OTOH, libel laws vary a lot in different jurisdictions, and the Supreme Court only has the final say as to one of them. IIRC, there are some states where there is a strong fair comment defense, in excess of the minimum required by the First Amendment.
No, that's not really how it works. A lot depends on how people perceive what you say, and how you meant it. You seem to think that 'opinion' is a magic word that will protect you, but it very well may not.
To ensure that posters don't get sued since opinions can't be lible.
What makes you think that? It depends on your jurisdiction, of course, since defamation laws can vary quite a lot, but at least with regard to federal defamation law, opinions can indeed be libelous. Also, merely using a preface like 'my opinion is' is not a magic incantation that is going to protect you no matter what follows it; simply saying that something is an opinion doesn't make it an opinion, and no court is stupid enough to be tricked in that manner.
You should read a very on-point Supreme Court case: Milkovich v. Lorain Journal Co., in which the Court clearly stated that as a matter of First Amendment law, there is no categorical opinion defense.
I'm not trying to do something with it that I shouldn't, like copying it when the purchase agreement clearly says I'm not suppose to
There is no purchase agreement, actually. When a DVD has a notice on it to the effect of 'copying this DVD is illegal' that isn't even arguably an attempt at forming a contract, it's just a simplistic and one-sided restatement of the law. Believe me, if they wanted to push a contract on you, you'd know it; look at software, which has very prominent EULAs (which are only sometimes found to be valid as a general matter -- the courts are still hashing out whether EULAs are to be allowable or not). The notices on DVDs, CDs, and most other copies of creative works generally don't cut the mustard, nor are they even intended to. But they've got you fooled, and that is really the point.
As for what you can and can't do, it depends. First, let's remember that accessing the plaintext on a DVD is not the same thing as copying the DVD (whether it is encrypted or not). Unauthorized copying of a DVD certainly may be illegal, but it is not illegal in every case; for example, if you could copy a DVD pursuant to fair use (c.f. people ripping CDs to their computers and iPods), then it would not be illegal. But unauthorized access to an encrypted DVD is always illegal, at least in the US. But even that leaves open the ability to unauthorizedly but lawfully copy an encrypted DVD with its encryption intact, and then accessing that new copy in some authorized manner, which is possible since it isn't you that is authorized, but your player. Still, that's all harder than it needs to be; it'd be simpler if the DVD wasn't encrypted in the first place.
So given that there are things which you could lawfully do, given the right circumstances, but which DRM does interfere with, do you think you might end up feeling at least a little miserable at some point?
I know that even if I never needed to do anything that would be legal but for anticircumvention laws, I'd still be upset at the restriction, which I feel is unwise, unreasonable, unwarranted, and unconstitutional.
Well, I am a real lawyer. Where you went wrong was in not specifying that what you'd like to hear is what a real lawyer thinks about the possible precedents that could stem from this case and how influential they might be on other courts. Instead, given what you did write, what a real lawyer was thinking on any subject satisfied your request. Me, I was thinking about Guitar Hero. I can manage five stars on medium across the board, but I can barely get three stars on most of the hard songs. I guess I need to keep working on it.
I would think it highly optimistic to think that Wikipedia can't be sued.
No. As I mentioned elsewhere under this story, Wikipedia can't be sued for libelous information put there by users, by virtue of the only good part of the CDA, 47 USC 230. No need to be skeptical about it; it's been applied numerous times in the decade or so it's been around, and it is very protective of people and service providers online who aren't the original sources of the information at issue. Look it up.
It doesn't matter. The Communications Decency Act was a terrible law and most of it was struck down as being unconstitutional. But a portion of it is still in effect: 47 USC 230. It grants extremely broad protection for providers and users of computer systems who merely reprint information provided by another. Wikipedia itself didn't make this edit to the page, a user did. As a result, Wikipedia can't be sued for the damage to the plaintiff's reputation. He'll have to find the original source.
But it doesn't matter. No one actually uses the common carrier argument for copyright purposes. Instead the 17 USC 512 safe harbor would be relied upon, and it covers anyone who meets the requirements set forth in the statute, not just telcos or professional ISPs.
Also many transportation companies, public utilities, some accomodations, etc. are common carriers. The concept predates telecommunications, actually, and really has more to do with moving cargo and people.
Okay, if that's what you want. Right now I'm thinking that it's a pain in the ass to graduate to the 'hard' level on Guitar Hero II. I'm having trouble getting used to moving my hand up and down the neck of the controller so that I can use the orange fret.
Not only that, but if lawyer fee awards become commonplace, people will be able to hire much BETTER lawyers (who will work on contingency).
Huh? A contingent fee is a percentage of a damage award; plaintiff's attorneys can get contingent fees, but defense attorneys never can (mutatis mutandis for counterclaims). This sort of award is based on a reasonable hourly fee.
Not quite. It's true that the normal rule here is no fee awards, but in the Copyright Act, there is a provision allowing the prevailing party to recover reasonable fees and costs. It has nothing to do with being a message to the plaintiff, it's just that the defendant prevailed, and can thus ask for fees and stand a decent chance of getting them.
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Well, I think it's just a screwup with regard to what the people on the business end of it are calling it, really. It can't be a 512 takedown notice, since the program is not infringing even though it pretty certainly is a circumvention device. But it can be a regular old cease and desist notice. The main difference is that for 512 takedown notices, ISPs do what they're told in order to protect themselves from being sued, in accordance with the law that protects them so long as they obey the notices. For C&Ds, the ISP isn't protected anyway, but will probably have an easier time of it if they do what they're told. I doubt the lawyers that sent it actually called it a takedown notice in the context of 512.
If I buy a HD-DVD, they're giving me permission to watch it. To do so, I have to decode it. I signed nothing at the time of purchase promising to watch it only with players they approve of. By all logic, they HAVE given me permission to decrypt it.
Not quite.
It's a bit easier to use DVDs as an example for this, rather than Bluray or HDDVD, since they're not as well documented.
The movie studios encrypted discs with CSS. They then gave the DVDCCA the power to grant authorizations to decrypt and access those movies. The DVDCCA in turn authorized the player manufacturers to build players that could handle that decryption, provided that they conformed to certain requirements (e.g. respect region codes, add macrovison to the outputs). The permission is granted, therefore, to the disc-playing machine, not the owner or user of the machine, nor the owner or user of the disc itself.
This is why, when you watch a DVD on an approved player, it is lawful with regards to access-controls, regardless of whether the DVD is lawfully made and possessed, lawfully made but stolen, or unlawfully made (and yet still encrypted for some reason). But it is unlawful to watch a DVD on an unapproved player, regardless of the provenance of the DVD.
So no, when you bought the DVD, you did not get permission to decrypt it. But so long as your player is approved, then it isn't unlawful for you to use it -- or for anyone to use it -- without having to be given permission themselves.
I'm pretty confident that the newer generation formats work in substantially the same way.
My county library makes books available for electronic checkout (essentially, a download). When you are done with the e-book, it's checked back into the library. This appears to be legal fair use in terms of copyright.
It could be, but I'm confident that they aren't relying on fair use; they have paid for a license to be able to do this. (And when the license runs out, they stop being able to do this, which IMO makes it rather wasteful as compared to getting hardcopies)
For non-public domain materials, it's by a special arrangement, count on it.
The distinctions aren't really relevant. For the purposes of the replicator discussion, copyrights and patents are basically the same thing, since our ability to cheaply make copies of things will have increased into interesting new territories. And trademarks merely deal with non-useful source identifiers, which could surely be removed from the replicated cars, probably in the process of replication, if it turned out to be a headache at all.
Of course, the car companies would like replicators for their own use, just not for their customers. They'd be able to fire all of their unionized employees, except for the members of the Allied Replicator Operators, get rid of factories and distribution systems, and just set up replicators at the dealers. Just as with copyright, there has never been a new technology that pirates could use, but publishers couldn't; publishers want a monopoly on the new technologies, is all.
Yes, it is legal, but it's not quite as advantageously positioned as a public library. And there are still private libraries. For example, here in Boston, we have the Boston Athenæum.
If I borrow a CD or DVD from the library and play it on my computer, I am also making a copy on my computer.
Yes, and under those circumstances, making the copy for the purposes of playing it, likely falls under an implied license or fair use. But making a copy to keep, or making a copy from the Internet generally, would be different circumstances. That they're all copies on the computer might make them seem to be the same, but trust me, they're very different, since the law can recognize and deal with things like the differing provenances of bit-for-bit identical copies.
No, the library makes their copies available for lawful distribution, whereas a fileserver is making their copies available for unlawful distribution (or more techically, unlawful performance or display). The real issue is just that the Copyright Act only makes actual infringements illegal, but doesn't make attempted infringements illegal. Nor does it make the offering of aid in an infringement illegal if there is no completed infringement. The question is whether the court here will go further than the actual language of the Act.
512 is bad, but the safe harbor is useful. Better to fix it than to get rid of it altogether.
Who is "they"?
You know... them. Those giant mutant ants from the 50's.
Pft. What do you think Napster and Grokster were sued for? Secondary liability shows up in plenty of places in the law, in fact.
Meh. I think you'd win. It's not believable, and if no one reasonably believes you, then his reputation can't be harmed, which is what the law is really about. But you're right in that 'opinion' is not necessarily a magic word. OTOH, libel laws vary a lot in different jurisdictions, and the Supreme Court only has the final say as to one of them. IIRC, there are some states where there is a strong fair comment defense, in excess of the minimum required by the First Amendment.
No, that's not really how it works. A lot depends on how people perceive what you say, and how you meant it. You seem to think that 'opinion' is a magic word that will protect you, but it very well may not.
To ensure that posters don't get sued since opinions can't be lible.
What makes you think that? It depends on your jurisdiction, of course, since defamation laws can vary quite a lot, but at least with regard to federal defamation law, opinions can indeed be libelous. Also, merely using a preface like 'my opinion is' is not a magic incantation that is going to protect you no matter what follows it; simply saying that something is an opinion doesn't make it an opinion, and no court is stupid enough to be tricked in that manner.
You should read a very on-point Supreme Court case: Milkovich v. Lorain Journal Co., in which the Court clearly stated that as a matter of First Amendment law, there is no categorical opinion defense.
Ceiling Buzz is watching you, and ready to punch you out.
I thought he only punched out people who denied that he had been to the moon. I think he did go to the moon. And for that, he must die!
But since I'm rather indifferent about people who merely orbited the moon, Michael Collins may live. If you call that living, anyway.
You're saying that because I can see the moon, people who've walked on the moon should have been killed?
Yes. I hate those guys.
I'm not "miserable" at all...
Well, they do say that ignorance is bliss.
I'm not trying to do something with it that I shouldn't, like copying it when the purchase agreement clearly says I'm not suppose to
There is no purchase agreement, actually. When a DVD has a notice on it to the effect of 'copying this DVD is illegal' that isn't even arguably an attempt at forming a contract, it's just a simplistic and one-sided restatement of the law. Believe me, if they wanted to push a contract on you, you'd know it; look at software, which has very prominent EULAs (which are only sometimes found to be valid as a general matter -- the courts are still hashing out whether EULAs are to be allowable or not). The notices on DVDs, CDs, and most other copies of creative works generally don't cut the mustard, nor are they even intended to. But they've got you fooled, and that is really the point.
As for what you can and can't do, it depends. First, let's remember that accessing the plaintext on a DVD is not the same thing as copying the DVD (whether it is encrypted or not). Unauthorized copying of a DVD certainly may be illegal, but it is not illegal in every case; for example, if you could copy a DVD pursuant to fair use (c.f. people ripping CDs to their computers and iPods), then it would not be illegal. But unauthorized access to an encrypted DVD is always illegal, at least in the US. But even that leaves open the ability to unauthorizedly but lawfully copy an encrypted DVD with its encryption intact, and then accessing that new copy in some authorized manner, which is possible since it isn't you that is authorized, but your player. Still, that's all harder than it needs to be; it'd be simpler if the DVD wasn't encrypted in the first place.
So given that there are things which you could lawfully do, given the right circumstances, but which DRM does interfere with, do you think you might end up feeling at least a little miserable at some point?
I know that even if I never needed to do anything that would be legal but for anticircumvention laws, I'd still be upset at the restriction, which I feel is unwise, unreasonable, unwarranted, and unconstitutional.
That doesn't sound very Voltron-like to me. I suspect that Getter Robo would be a more apt comparison.
Well, I am a real lawyer. Where you went wrong was in not specifying that what you'd like to hear is what a real lawyer thinks about the possible precedents that could stem from this case and how influential they might be on other courts. Instead, given what you did write, what a real lawyer was thinking on any subject satisfied your request. Me, I was thinking about Guitar Hero. I can manage five stars on medium across the board, but I can barely get three stars on most of the hard songs. I guess I need to keep working on it.
I would think it highly optimistic to think that Wikipedia can't be sued.
No. As I mentioned elsewhere under this story, Wikipedia can't be sued for libelous information put there by users, by virtue of the only good part of the CDA, 47 USC 230. No need to be skeptical about it; it's been applied numerous times in the decade or so it's been around, and it is very protective of people and service providers online who aren't the original sources of the information at issue. Look it up.
It doesn't matter. The Communications Decency Act was a terrible law and most of it was struck down as being unconstitutional. But a portion of it is still in effect: 47 USC 230. It grants extremely broad protection for providers and users of computer systems who merely reprint information provided by another. Wikipedia itself didn't make this edit to the page, a user did. As a result, Wikipedia can't be sued for the damage to the plaintiff's reputation. He'll have to find the original source.
But it doesn't matter. No one actually uses the common carrier argument for copyright purposes. Instead the 17 USC 512 safe harbor would be relied upon, and it covers anyone who meets the requirements set forth in the statute, not just telcos or professional ISPs.
Also many transportation companies, public utilities, some accomodations, etc. are common carriers. The concept predates telecommunications, actually, and really has more to do with moving cargo and people.
I'd like to hear what a real lawyer thinks.
Okay, if that's what you want. Right now I'm thinking that it's a pain in the ass to graduate to the 'hard' level on Guitar Hero II. I'm having trouble getting used to moving my hand up and down the neck of the controller so that I can use the orange fret.
Not only that, but if lawyer fee awards become commonplace, people will be able to hire much BETTER lawyers (who will work on contingency).
Huh? A contingent fee is a percentage of a damage award; plaintiff's attorneys can get contingent fees, but defense attorneys never can (mutatis mutandis for counterclaims). This sort of award is based on a reasonable hourly fee.
Not quite. It's true that the normal rule here is no fee awards, but in the Copyright Act, there is a provision allowing the prevailing party to recover reasonable fees and costs. It has nothing to do with being a message to the plaintiff, it's just that the defendant prevailed, and can thus ask for fees and stand a decent chance of getting them.