American laws apply when American laws say that they do. For example, foreign entities that conduct business in, or with persons in, the US, fall under our law. Geographic location or the country it was organized under don't provide a way out. Enforcement may be thorny, but that's a practical issue, not a legal one. (e.g. how the executives of DeBeers, the South African diamond cartel, will be arrested if they enter the US)
This of course would not preclude UK law from also applying. Spamhaus really has to comply with the laws of both countries, and probably many other countries besides, because they do a lot of business around the world.
The lesson is that people should not enter into international commerce lightly, no matter how easy it is to get involved in it thanks to the Internet.
And also that you, who are apparently not a lawyer, should probably keep your mouth shut on legal issues, instead of parroting the common misconceptions.
I read your link, and interesting as it is, the case still doesn't hold water. There was no defamation of character, and here's why.
That's great, except that that's an argument on the merits of the case, and Spamhaus would have to actually show up for once in order to make it. If they fail to argue on their behalf, a default judgment against them is appropriate.
If I state that I think xyz is a moron. That's stating an opinion.
So? First, couching something as an opinion doesn't make it less than an asserted fact. Second, there's no special exception for opinons. You should read the Milkovich opinion from the Supreme Court that said as much.
Now - as far as jurisdiction goes, Spamhaus's request basically stated that Illinois had no jurisdiction. If the court systems failed to agree with Spamhaus, and not move the venue, then Spamhaus stuck to their determination that Illinois had no jurisdiction by not appearing.
This, I believe, was the correct thing for them to do. Don't back down when you know you're right.
No. If you think that a court lacks personal jurisdiction over you in a particular case, you must contest this in the appropriate manner. Typically this is done via a special appearance before answering the suit, or in the first answer, depending on the court's procedural rules. Failure to do this -- for example, by ignoring the suit -- can easily result in a waiver if not worse. At this point, Spamhaus could not screw themselves over more if they tried. They are doing everything wrong. Some of my friends at work have been following along with this case, as have I, and it's like a dark comedy to us. The only thing missing is for Spamhaus to make a stupid argument like the court's flag being wrong.
If, by some odd turn of events, that I cannot even fathom at this time, Spamhaus ends up in court, all they'll have to do is drop the list of messages sent by the plaintif into the evidence pile, and let the Judge see what was sent by e360, and the case will be closed with prejudice.
That's not how it works.
It's very enlightening and entertaining.....
I didn't find it to be either, really. It doesn't seem to be glaringly inaccurate or anything, but it doesn't talk about very much, and certainly not much relevant to this suit.
Well, they only have a legal malpractice claim if in fact there was no personal jurisdiction before they apparently waived it. Quite honestly, it's entirely possible that they had minimum contacts anyway. Now, bailing out on the whole case, that's a big deal, but I doubt their lawyers advised them to do that.
Actually, I don't recall that Spamhaus was accused of blocking emails per se. They were accused of tortious interference and defamation, both of which are entirely possible in a scenario involving a list that people choose to subscribe to.
And it's very wrong of you to claim that the judge is incompetent. Because Spamhaus refuses to go to court and present its side of the story, the judge is only hearing one side of the case. He really has no option but to side with e360; the law says that they will win by default if they're the only ones that bother to show up. Anyway, don't insult him just because you wrongly imagined what the issues were in the case and because you disagree with him.
The #1 reason they didn't defend themselves is because they are a UK company and not under US jurisdiction.
Being a UK company does not mean that they are not under US jurisdiction. They may be too far removed for a US court to enforce much against them, but that has nothing to do with jurisdiction, which is much broader than you think.
The #2 reason is that if they were to spend the money to defend themselves, they would open a precedent for any other spammer to sue them the same way.
Why? It ought to be a relatively simple case to win -- if they hadn't totally screwed it up -- and if Spamhaus wins, they set precedents in their favor that can be used to deal with similar future litigation more easily.
I don't really understand what a US court CAN do to a foreign company that sells its services to a US company.
Well, they could order the US company to take any money it was going to pay to the foreign company, and instead have it paid to the plaintiff in the case who won a default judgment against the foreign company. They could confiscate and sell at auction any property in the US that the foreign company owned. They could put out warrants to arrest any officers of the foreign company if they enter the US.
Basically they can force the foreign company to avoid the US entirely.
Hell- US lawyers can't interpret US law. If they could- court cases would be a lot fucking shorter.
Oh, we can. That's why there are so few court cases. People usually don't bother to go to court unless there are multiple ways to interpret a law that are at least somewhat reasonable, and they're just disagreeing over which interpretation is correct. (Or if they're in agreement as to the law, but are arguing over the facts) Given a law that you can interpret in more than one way, it falls to the courts to authoritatively tell us which is the correct way.
Personally I think the judge should get his head out of his ass, recognize he doesn't have jurisdiction, and drop the case.
Frankly, given the case so far, and what Spamhaus has done so far, I think that he probably does have jurisdiction. The judge is acting appropriately given what he has to work with. If anyone is to blame for the problems Spamhaus finds itself facing, it's really Spamhaus. It's as though they are deliberately trying to do as much harm to themselves as possible.
I'll try to shed some light on how this sort of thing works, more or less.
There are two kinds of jurisdiction ('jxn'): subject matter jxn and personal jxn. Both must be proper in order for a court to hear a case.
Subject matter jxn deals with matters like standing, the subject of the case (e.g. is it a patent case), diversity, etc. It's really not an issue in this case, and will only crop up once, and be briefly noted later on.
Personal jxn deals with whether the parties in the case are within the court's jxn. American law generally has very broad personal jxn. The limits on this are basically those put in place by state and federal law, including the Constitution. This is because jxn is basically the extent to which the court is permitted to reach by law, and those are the relevant laws. Whether the court can effectively exercise power over people is an entirely different matter -- fleeing to a faraway country or holing up in a bunker with a lot of guns are the sorts of tactics used to escape the law, and don't have anything to do with jurisdictional matters.
In any case, jxn is how far the law allows the court to reach, regardless of practical matters of enforcement. The law generally put it to be as far as possible, ultimately limited by the Constitution. It could arbitrarily be shorter, but this is not common.
There are several ways in which a court may find that it has personal jxn. The easiest is when someone is physically present. But physical presence is not actually required. For example, if you are a resident of a state, but are not currently in the state, there is still personal jxn. Or if you are not a resident of a state, but drive a vehicle in the state, you are deemed by law to have consented to the matter of personal jxn by driving there. (Again: personal jxn is what the law says it is, not what you think it ought to be, and totally apart from the matter of whether enforcement is practical)
Still, when the applicable law is simply that personal jxn extends as far as the Constitution permits, the question becomes one of Constitutional law: does the guarantee of due process in the Constitution permit jxn to be exercised here? The traditional test to find out is the minimum contacts test.
Roughly, there must be at least a minimum number of contacts of sufficient quantity and quality that it would be fair and just to exercise personal jxn.
For example: did the defendant engage in business dealings in the jxn? Did they avail themselves of the benefits of the jxn's law (e.g. by entering into contracts which the jxn's law could be called upon to enforce in some manner). Do they solicit business within the jxn? Do they sell goods or services, directly or indirectly, to people in the jxn?
The more contacts there are, the more likely that jxn will stand. If there are few contacts, then it is less likely. However, where a suit is closely connected to a particular contact, personal jxn may be found with less of a contact than if there is no such connection. (E.g. if you only do business with one person in California, then probably only that person would be able to sue you there based on that contact)
Some contacts are too attenuated or minor to support personal jxn, but they're the exception, particularly where we're dealing with business matters.
The other important thing to note about personal jxn is that it is waivable. The law permits someone to consent to personal jxn. You often see this sort of thing in contracts. But going to court to defend yourself will count too. If you want to argue that a court lacks personal jxn over you, then you have to do so in a very precise fashion, lest you inadvertantly waive it, irrevocably. This might seem odd to you, but let me reiterate: jxn is what the law says it is, and the law says that personal jxn is waivable, and has to be brought up in a very specific way, at a very specific time (immediately, basically), or else it is waived. It has nothing to do with what country you're in (unless that matt
It is like Texas Instrements has no obligation to maintian thier calculator's fitness to calculate if you turn it into an MP3 player.
They do if they enter into a contract that says that they do.
It is almost as if the GPL people want everyone in corperate software and companies to not tuse GPLed software or let the GPL people run thier companies.
Actually, that's always been a criticism of the GPL. Businesses would prefer something more like BSD, frankly. All you're arguing about is the degree to which the GPL interferes with them.
Extending the GPL to cover manufacturer's hardware or force abitrary pattent obligations/restrictions is not simular in spirit.
I disagree. The spirit of the GPL is to try to have and preserve the freedoms it identifies. The Tivo model is an attack on the purpose of the GPL, which is to keep software derived from GPLed software available under the GPL and available for practical use by users. Being unable to run modified Tivo software on a Tivo because Tivo has put artificial barriers in place is hostile to the GPL's values. It's very much in the spirit of the GPL to shut that down.
Want to bet? It depends on the audience. Frankly, most clients aren't even interested in the whys and wherefores; they just want a certain or at least highly probable answer, preferably that 'yes' or 'probably yes' they can do what they want to do. Usually they're not interested in more than that unless the answer was 'no' or 'probably no,' in which case they just want to know the easiest way to get to a better position.
Now, if I were talking to a lawyer, or a judge, or someone who knew what the hell they were talking about, or was even interested in what the law actually is about, then I'd have to explain myself better. But your posts are just awful. Responding to them in detail would be a waste of my time and most likely lost upon you anyway. It's like the difference between running into Noam Chomsky at the grocery store, and having a meaningful discussion of politics, and running into Lyndon LaRouche at the liquor store, with whom you are never going to have a meaningful discussion about anything.
As for a supposed inaccuracy, I'm afraid not. The GPL does require an obligation on the part of the licensee -- he has to distribute his modified work under the GPL if he distributes it at all. That he has a choice in whether to distribute or not doesn't change his obligation as to how he must do so if he does so. I'll grant that it's very license-like, and that part of the subject matter is a license, but the GPL as a whole is a contract.
In any case, you're beneath talking to, and you're laughably wrong about pretty much everything you've opened your mouth about. I'm more than happy to discuss these matters in the future, but only once you've actually learned about them. Right now you're solidly in the realm of 'making crap up' and I really don't feel like trying to drag you out of your delusions if you're going to fight it.
How can we say that DRM, a type of work distribution, can be mutally exclusive from copyright?
We change the law. The new law basically says that if a work is copyrightable, and is in fact copyrighted, then it lasts for a term of so many years. But that the copyright ends immediately if DRM is applied to it by certain parties (e.g. the copyright holder, or people he has licensed to do so). This forces the copyright holder to not only avoid DRM (if he wants to keep his copyright) but to make sure that he makes it clear to licensees that they had better avoid it too, as a condition of the license between them. Further, we make sure that there's a cause of action by interested parties against a party who puts DRM on a work causing it to enter the public domain, so that if a licensee does in this way cause early termination of the copyright contrary to what the copyright holder wanted, the copyright holder can sue the licensee for damages since the work wasn't meant to be DRMed.
Then we also set up a DRM board at the Copyright Office with the job of running public information campaigns about the status of DRMed works and cracked public domain copies, of coordinating attacks on DRM, of coordinating access to cracked copies so that there is a better alternative to DRMed copies of a specific work, of helping to fund cracks against DRM if necessary (e.g. if someone comes out with DRMed 8 tracks, that's going to be unpopular enough that we can't rely on the community to go after it itself), and so forth.
The author still maintains his copyright regardless of how its distributed.
There's no rule that says that that's how it has to be. Copyright is an artificial monopoly granted by the government. It normally has various strings attached to it; conditions that the applicant has to fulfill to get a copyright. This can just be one more.
I think DRM from this perspective is a Good Thing.
I'd rather that artists were popular because of their works, and that the public could generally ignore distribution methods. You're very wrong about it being a good thing, you just seem to have a natural 'glass is half full' mentality.
Why be suspicious? That's how tv schedules are put onto the Tivos to begin with, as I understand it, and recording tv according to a schedule is one of the big functions of the Tivo. Heck, if you really want to do it regardless of the users, I'd put in a wireless card, and so long as the connection was working, only display a message that said something generic like 'Starting Up for the First Time -- This will take a few minutes' rather than say that it's furiously dl'ing its software from the best open WAP it can find. It would only ask for a network connection if it really can't get one itself.
Consequently, your claim that the GPL(v3) is "still relying purely on copyright law" is factually incorrect.
No, you misunderstand me. The only thing that makes the GPL enforceable is still copyright law. Being enforceable, it doesn't matter whether it goes outside of copyright law with regard to what it asks for in return; that doesn't make it less enforceable.
patent litigation is very specifically not development
Well, if there's an applicable patent, that patent will prevent the use, creation, modification, distribution, etc. of articles embodying the patented invention. For example, if Unisys had released a GPL'ed GIF viewer when the infamous GIF patent was in force, then while it would not be a copyright infringement to modify and redistribute the program, it would nevertheless be a patent infringement to do so. Thus Unisys could release a program under the GPL, but it would be worthless to everyone since the effect would be the same as if it had not been so released. This could easily be abused so that Unisys could unfairly get good publicity, or could selectively allow or disallow some modifications of the program under additional terms relating to the patent, while still being under the GPL as well.
In any event, whatever words are chosen to describe it, the new GPL departs from the safety of default copyright protection (for which you never needed to express agreement), and heads into the shark-infested waters of a non-copyright-based, user-activity limitations clause that cannot carry default copyright protection because patent litigation is not intrinsically relevant to copyright.
The problem here is that your statement is just utter nonsense. Again: what gives the GPL teeth is that it is illegal to modify et al the software without permission. The GPL is permission, but with a string attached. It doesn't matter what the string is. The string could be a reciprocal grant of rights, the string could be a payment of money, the string could be attribution, the string could be unicycling across the Brooklyn Bridge wearing a gorilla suit. It doesn't matter. There is no such thing as contractual clauses that have to be "instrinsically relevant to copyright" and in fact, that's the stupidest thing I've heard on Slashdot in a couple of weeks. Just forget the idea, as it couldn't be more wrong.
A litigant could even claim that his right to sue for alleged patent infringement is being unlawfully hampered by that clause, because by copyright law he would still be allowed to distribute the relevant work and now cannot, which indicates a conflict with copyright law.
That also is nonsense.
It's easy to see restraint of trade through imposition of non-contracted licensing terms being conjured up here as well, since giving away the right to sue is clearly a contractual term, not a copyright one.
That too (especially since the GPL is, and always has been, a contract).
Whatever one may think of such claims, they are at least strongly arguable ones
Actually, I think they are insipid claims, that no one would ever argue, and that the guy in the gorilla suit on the unicycle is acting more seriously and intelligently than you. You have no idea at all what you are talking about. You need to stop posting and learn something about this subject before you embarass yourself further. I do not often pull rank, as it were, but please bear in mind that I am a copyright lawyer. I have studied licensing, I have written licenses, I deal with them pretty often, in fact, and I am telling you that the patent related clauses in GPL3 do not weaken it one little bit. In fact, similar clauses are fairly common in software licenses between developers. There's no reason for the GPL to be any different.
there has to be a presumption that without the restriction, there would be less free software.
That's correct. I think that this might be borne out by the large number of works that are derivatives of public domain works, but which are copyrighted. E.g. nearly any Disney cartoon you care to name. The BSD counterexample is interesting, but BSD has waned in popularity next to the GPL, and even if it is only perception that is the cause of this, that would seem to indicate that there might be a number of authors who are themselves motivated by the prospect of being able to use the work of others in a GPL-type situation. This group might not be interested in using the BSD license at all, since it doesn't really do what they'd like.
FWIW, I'm a copyright attorney, so I've thought about this a bit. I would argue that it's not intended to boost the long term outcome at the expense of the short term, it's designed to incentivize creation and publication period. That is to say, without copyright, there would be little monetary incentive to create and publish new work. There might be other incentives, but (I would argue) [American] copyright law only really considers monetary incentives to be of value.
Small world; I also am a copyright attorney.
While our current copyright law has strayed far from the path, as I'm sure all would agree, I think that at the heart of the system is a desire to serve the public interest in the following fashion. There seem to be three distinct, but related, public interests with regard to creative works. The public wants original works to be created and published, the public wants derivative works to be created and published, and the public wants to be as free as possible with regard to those works. An ideal world, then, would be one in which everyone who wanted to create and publish a work would, regardless of whether it was original or derivative, and that everyone could freely make, use, and distribute copies as they saw fit, probably resulting in public, private, and personal libraries being as large as feasible given external considerations (e.g. how many books can you fit into a house).
We can measure one copyright regime against another by looking at how well each of the interests is satisfied, adding them together, and determining the net satisfaction.
Our baseline is a system where there is no copyright at all. Only if a particular copyright system produces a better result than none would it be better than none at all. Let's look at each of the three interests in turn. First, there will be some creation and publication of original works, as we know from history (since copyright is not that old). This is because copyright only provides one incentive: the possibility of money which is derived from exploiting the copyright monopoly. Other incentives exist, however, having nothing to do with copyright. Examples include fame, a desire to educate on some subject (this can range from religious texts to scholarly works, etc.), money derived from being first to market, money derived from being commissioned by someone else (this is what's responsible for just tons of fine art), money derived from copies as specific tangible objects (this is most of the rest of the fine art -- original copies are worth thousands or millions times more than mere prints), personal satisfaction (e.g. art for art's sake), practice (e.g. student assignments, art studies), etc. American copyright law doesn't really consider these to be valueless incentives, but it can't really contribute to them; how could the law mandate fame for authors, for example? Second, there will be somewhat more creation and publication of derivative works, also as we know from history. The same incentives exist for these types of works, but they are magnified significantly. This is because derivative works involve less of an investment by the author, and so less of an incentive is actually required. Third, if there is no copyright, the public interest in the greatest freedom with regard to the
Well, what I would do would be to ship the Tivo without the GPL-based software, and instead with a small, custom program that was severely locked down, and which would then go to Tivo's website upon set-up, and download the GPL-based software. This is because the magic word you used was 'with.' By distributing the hardware separately from the software, the former wasn't distributed with the latter. Problem solved for Tivo, but you, the user, are still SOL if you want to run your own software.
The longer the license, the more susceptible it is to loopholes.
That's not at all true.
Hell, the only times I'd worry about trying to fit a contract onto a single page are if I either: 1) want to project the image that the negotiation will be simple and straightforward (even if it's not), or; 2) am hoping the other side won't read it carefully (since it can't be a big deal, fitting on just one page), and I'll gain an advantage for my client. A good example of the latter are A&R contracts. They could be written on a napkin, and totally screw up the career of a promising band.
The other comments are useful, but also note that you could release a regular written document under the GPL itself. It might not be the best fit, but it is doable.
While the public domain program cannot be made unfree, the original portions of any derivatives of it are not at all free. If the software is popular, and people make a lot of derivatives, you're ultimately left with only the first program being free, and nothing that comes after it being.
The FSF, is looking at the net amount of freedom (i.e. how free you are with regard to all of the software descended from the original program), and finds that limited impairment of it can nevertheless result in more of it over time than the alternative you suggest.
Similar logic is behind the copyright system (where the ideal is maximum creation and publication and freedom, it is most closely approached by temporarily limiting some of these, so as to boost the long term outcome at the expense of the short term) and I doubt that most people would object to it in the abstract, though we might differ on how best to accomplish it.
I don't see any reason why a software license should be forcing it's values on hardware vendors. When you buy a Tivo, you buy a TIVO, not a PC or experiment/development computer. If TIVO has to only run thier signed code on the unit in order to get hardware licensing or content licensing from others, then thats thier obligation not the GPLs place to break.
Well that's hypocritical, then.
If Tivo licenses hardware that imposes certain requirements on them, and then they license GPL3 software, which imposes other, mutually exclusive requirements on them, then Tivo is up shit creek. They cannot meet all of their obligations, and are going to end up breaking one of the agreements. The proper thing for them to do is to look at the licenses ahead of time and choose one. But it makes no sense to say that hardware developers are more important than software developers, and therefore the latter should yield to the former. You can argue that people should be allowed to license their product as they like, or that they should not be allowed to license it at all, but don't go around arguing that one group can license as they like, and that everyone else should bow to them, and not get into conflict.
I don't think that your analysis is correct here. The GPL is still relying purely on copyright law; it only applies if you engage in activity otherwise prohibited by copyright law (e.g. copying, distribution, preparing derivatives, etc.). The difference is that rather than limit what it requires in compensation for the copyright license it grants to the copyright field, it's now asking for more. What it asks for doesn't really weaken it. Lots of copyright licenses are made in exchange for money, which is also outside the ambit of copyright.
I don't think that it's getting into EULA territory, really, as the GPL still would not apply to end users. It only applies to people who want to engage in covered activity. Mere use isn't one of those.
And also, EULAs continue to grow in strength, though the main issue there has to do with how they're formed, not what they deal with. No one would have any argument at all against a EULA that was presented and agreed upon in a different fashion. In regard to formation, the GPL is on the same ground it always was.
I want all legal services to be free.* Were do I go to fight?
Your state legislature and state bar are good places to start.
Of course, plenty of legal services are already free -- criminal defendants can have free lawyers, if they want them, and most states require that lawyers licensed to practice there do a certain number of pro bono hours every year, meant to help those who can't afford it. And there are legal aid groups which do the same sort of thing. Contingency fees are there to help clients who can't personally pay for a lawyer, but who have a good case where the lawyer thinks there will be money later, and where both are willing to take the relevant risks. And this isn't like medicine; you can always represent yourself.
But maybe you could have a single-payer legal system, just like a socialized health care system. So long as lawyers got paid their hourly fees by someone, and it was in an ethical fashion (we're acutely aware of the danger of being paid by someone who's not the client -- it can lead to ethical breaches where you don't put the client first and foremost), and people had just as much freedom with regard to their legal matters as they do now, I doubt we'd really care.
If people respected (and pushed to fix) copyright then publishers and authors (and the music/movie industries) probably wouldn't think it was necessary. As it is the internet-going masses don't, so both sides have black eyes.
I don't know about that. If copyright were fixed, then I bet more people would respect it, and act lawfully. Generally, I think that copyrights boundaries ought to be determined in part, by looking to the norms the public has. If most people copy and distribute works freely over the Internet, then we ought to seriously consider just legalizing that. Yes, it would cost the public in that some authors wouldn't bother to create anymore, but would the gains in terms of freedom with regard to existing works outweigh that loss? If they would, then it's a good idea. Then you end up with a lot of people acting lawfully, but not having to change their behavior, because the law against them turned out to be a bad law that wasn't worthy of their respect anymore.
OTOH, some other boundaries would still be worth having. Legalizing non-commercial infringement by ordinary people doesn't mean that we would have to legalize commercial infringement, or infringement on the part of businesses, etc. And I think that people consider them to be different in terms of their norms.
Besides, the industries will always take as much as they can grab, and they will always try to support those authors and publishers that exist now, even if at the expense of their sucessors. This is because they are only motivated by their own goals, and not what best serves the public or creation as a whole. It's up to us -- the public -- to step forward and make things better.
14 years is pretty much good enough, maybe a renew to 28 years.
Sure, but you're not actually thinking about it, you're just parroting what the terms were centuries ago. That's no good. What you need to do is to think of what terms -- and what restrictions -- will produce the greatest public benefit overall.
Personally, I think that terms should be very short -- 2 to 5 years or so -- but be renewable frequently, up to a maximum term of about 15 to 25 years. This way, if an author doesn't bother to renew, the work hits the public domain that much faster. Little excess copyright is wasted on them to the public's detriment. The overall term length ought to be determined by how long it takes, on average, for most of a work's lifetime economic value to be had by the copyright holder. Actual economic studies place it in the range above. It's not wild-ass guessing. Where an entire class of works tends to 'age' more rapidly, we could even provide for a shorter overall term by having fewer and more frequent renewals. Computer software is a prime candidate for this. That should probably not be copyrighted for more than 5 years.
But it's rare that an author wouldn't bother with copyright,
Hah!
Until quite recently, when you published something, if you didn't register for a copyright, the work immediately entered the public domain. And if you didn't renew, the work hit the public domain then. Most works created, as it turns out, were never worth registering, and those that were, were never worth renewing. Having copyrights granted automatically with very long terms that don't require renewal was probably the second stupidest thing ever in the history of copyright. If it wasn't for the fact that the original proponent of the idea is dead, I'd love to kick him around a little. He's fucked us all up. It's imperative that we get rid of this ASAP.
Given that people have used the word 'pirate' with that meaning since at least 1603, a full hundred years before copyright first existed (1710), I would say that your objection is hopeless, and that it more properly would refer to unauthorized copying, rather than illegal copying.
Here's some pre-copyright examples, which can be found in your convenient, pocket-sized, unabridged OED:
1603 T. Dekker Wonderfull Yeare sig. A4, Banish these Word-pirates (you sacred mistresses of learning) into the gulfe of Barbarisme.
1668 J. Hancock Brooks' String of Pearls (Notice at end), Some dishonest Booksellers, called Land-Pirats, who make it their practise to steal Impressions of other mens Copies.
1703 D. Defoe True-born Englishman in True Collect. I. Expan. Pref. sig. B3v, Its being Printed again and again by Pyrates.
1706 D. Defoe Jure Divino Pref. p. xxvii, Gentlemen-Booksellers that threatned to Pyrate it, as they call it, viz. reprint it, and sell it for half a Crown.
The fun thing to remember is that these uses of the word were during the height of piracy on the seas, and that everyone hated and feared pirates, as they would kill you, ransom you, steal from you, sell you into slavery, etc. In order to imagine how emotionally loaded the word was, if it had been coined today, it would have been 'terrorist,' or possibly 'rapist.'
Yes, it is necessary, or else everything would be pirated to hell and back.
And piracy is bad, because?
Remember, while I'm a copyright lawyer, I'm also thoroughly a utilitarian when it comes to copyright. This means that I only care about what best serves the public interest (which is divided into three sub-interests: creating and publishing original works, creating and publishing derivative works, and having no or minimal copyright) and not at all about authors or publishers, save for how that might affect the public.
the issue of creators' rights
Their rights are what we choose to give them, and we should only choose to give them rights when, and to the degree that, it serves our purposes to do so. Copyright isn't a civil liberty or an inherent right. It's artificial and granted for the purpose of the public good, like a municipal cable TV monopoly.
Basically, you guys want to stack everything in favor of the pirates and against the creators.
No, only in favor of the public. If the authors benefit from this, good for them. If not, I don't care. I take into account how the public benefit is affected by the benefit of authors (in much the same way that a farmer who raises eating chickens is concerned for the health of his flock up until he's ready to slaughter them, since this is what is best for him -- that the chickens would prefer a long and natural life is of no concern) but I am never going to support giving authors anything that is purely at the expense of the public with no greater benefit involved. That would be waste.
This means that where pirates interfere with copyright that maximally serves the public interest, I am against those pirates, since they are ruining it for the rest of us. But where copyright is excessive (as it is now, IMO) and does not maximally serve the public interest, then some of the piracy is perfectly okay and in fact should be legalized, to reduce copyright down, closer to where it is ideal again. More copyright is not a good thing; in fact, it's generally worse than less.
But it would be quite unlikely for me to support no copyright at all, which is basically what you're accusing me of. I wouldn't say I never would, but the situation that would give rise to that is pretty improbable.
Besides, the GPL is essentially a form of DRM (digital rights management).
No, the GPL is basically a contract. It doesn't interfere with the underlying law, in the way that DRM invariably does. For example, it is possible to reject the GPL, and then use portions of GPL'ed code pursuant to fair use, and still be acting lawfully. Whereas, if a work is DRM'ed, then it is going to interfere with fair uses just as much as with unlawful ones, because it is a simple, stupid restriction that cannot tell the difference.
Slashdot Mirror
This brings us back to jurisdictional issues.
American laws apply when American laws say that they do. For example, foreign entities that conduct business in, or with persons in, the US, fall under our law. Geographic location or the country it was organized under don't provide a way out. Enforcement may be thorny, but that's a practical issue, not a legal one. (e.g. how the executives of DeBeers, the South African diamond cartel, will be arrested if they enter the US)
This of course would not preclude UK law from also applying. Spamhaus really has to comply with the laws of both countries, and probably many other countries besides, because they do a lot of business around the world.
The lesson is that people should not enter into international commerce lightly, no matter how easy it is to get involved in it thanks to the Internet.
And also that you, who are apparently not a lawyer, should probably keep your mouth shut on legal issues, instead of parroting the common misconceptions.
I read your link, and interesting as it is, the case still doesn't hold water. There was no defamation of character, and here's why.
That's great, except that that's an argument on the merits of the case, and Spamhaus would have to actually show up for once in order to make it. If they fail to argue on their behalf, a default judgment against them is appropriate.
If I state that I think xyz is a moron. That's stating an opinion.
So? First, couching something as an opinion doesn't make it less than an asserted fact. Second, there's no special exception for opinons. You should read the Milkovich opinion from the Supreme Court that said as much.
Now - as far as jurisdiction goes, Spamhaus's request basically stated that Illinois had no jurisdiction. If the court systems failed to agree with Spamhaus, and not move the venue, then Spamhaus stuck to their determination that Illinois had no jurisdiction by not appearing.
This, I believe, was the correct thing for them to do. Don't back down when you know you're right.
No. If you think that a court lacks personal jurisdiction over you in a particular case, you must contest this in the appropriate manner. Typically this is done via a special appearance before answering the suit, or in the first answer, depending on the court's procedural rules. Failure to do this -- for example, by ignoring the suit -- can easily result in a waiver if not worse. At this point, Spamhaus could not screw themselves over more if they tried. They are doing everything wrong. Some of my friends at work have been following along with this case, as have I, and it's like a dark comedy to us. The only thing missing is for Spamhaus to make a stupid argument like the court's flag being wrong.
If, by some odd turn of events, that I cannot even fathom at this time, Spamhaus ends up in court, all they'll have to do is drop the list of messages sent by the plaintif into the evidence pile, and let the Judge see what was sent by e360, and the case will be closed with prejudice.
That's not how it works.
It's very enlightening and entertaining.....
I didn't find it to be either, really. It doesn't seem to be glaringly inaccurate or anything, but it doesn't talk about very much, and certainly not much relevant to this suit.
I think you're wrong about that. I discussed this at some length here. You might want to read it.
Well, they only have a legal malpractice claim if in fact there was no personal jurisdiction before they apparently waived it. Quite honestly, it's entirely possible that they had minimum contacts anyway. Now, bailing out on the whole case, that's a big deal, but I doubt their lawyers advised them to do that.
Actually, I don't recall that Spamhaus was accused of blocking emails per se. They were accused of tortious interference and defamation, both of which are entirely possible in a scenario involving a list that people choose to subscribe to.
And it's very wrong of you to claim that the judge is incompetent. Because Spamhaus refuses to go to court and present its side of the story, the judge is only hearing one side of the case. He really has no option but to side with e360; the law says that they will win by default if they're the only ones that bother to show up. Anyway, don't insult him just because you wrongly imagined what the issues were in the case and because you disagree with him.
The #1 reason they didn't defend themselves is because they are a UK company and not under US jurisdiction.
Being a UK company does not mean that they are not under US jurisdiction. They may be too far removed for a US court to enforce much against them, but that has nothing to do with jurisdiction, which is much broader than you think.
The #2 reason is that if they were to spend the money to defend themselves, they would open a precedent for any other spammer to sue them the same way.
Why? It ought to be a relatively simple case to win -- if they hadn't totally screwed it up -- and if Spamhaus wins, they set precedents in their favor that can be used to deal with similar future litigation more easily.
I don't really understand what a US court CAN do to a foreign company that sells its services to a US company.
Well, they could order the US company to take any money it was going to pay to the foreign company, and instead have it paid to the plaintiff in the case who won a default judgment against the foreign company. They could confiscate and sell at auction any property in the US that the foreign company owned. They could put out warrants to arrest any officers of the foreign company if they enter the US.
Basically they can force the foreign company to avoid the US entirely.
Hell- US lawyers can't interpret US law. If they could- court cases would be a lot fucking shorter.
Oh, we can. That's why there are so few court cases. People usually don't bother to go to court unless there are multiple ways to interpret a law that are at least somewhat reasonable, and they're just disagreeing over which interpretation is correct. (Or if they're in agreement as to the law, but are arguing over the facts) Given a law that you can interpret in more than one way, it falls to the courts to authoritatively tell us which is the correct way.
Personally I think the judge should get his head out of his ass, recognize he doesn't have jurisdiction, and drop the case.
Frankly, given the case so far, and what Spamhaus has done so far, I think that he probably does have jurisdiction. The judge is acting appropriately given what he has to work with. If anyone is to blame for the problems Spamhaus finds itself facing, it's really Spamhaus. It's as though they are deliberately trying to do as much harm to themselves as possible.
I'll try to shed some light on how this sort of thing works, more or less.
There are two kinds of jurisdiction ('jxn'): subject matter jxn and personal jxn. Both must be proper in order for a court to hear a case.
Subject matter jxn deals with matters like standing, the subject of the case (e.g. is it a patent case), diversity, etc. It's really not an issue in this case, and will only crop up once, and be briefly noted later on.
Personal jxn deals with whether the parties in the case are within the court's jxn. American law generally has very broad personal jxn. The limits on this are basically those put in place by state and federal law, including the Constitution. This is because jxn is basically the extent to which the court is permitted to reach by law, and those are the relevant laws. Whether the court can effectively exercise power over people is an entirely different matter -- fleeing to a faraway country or holing up in a bunker with a lot of guns are the sorts of tactics used to escape the law, and don't have anything to do with jurisdictional matters.
In any case, jxn is how far the law allows the court to reach, regardless of practical matters of enforcement. The law generally put it to be as far as possible, ultimately limited by the Constitution. It could arbitrarily be shorter, but this is not common.
There are several ways in which a court may find that it has personal jxn. The easiest is when someone is physically present. But physical presence is not actually required. For example, if you are a resident of a state, but are not currently in the state, there is still personal jxn. Or if you are not a resident of a state, but drive a vehicle in the state, you are deemed by law to have consented to the matter of personal jxn by driving there. (Again: personal jxn is what the law says it is, not what you think it ought to be, and totally apart from the matter of whether enforcement is practical)
Still, when the applicable law is simply that personal jxn extends as far as the Constitution permits, the question becomes one of Constitutional law: does the guarantee of due process in the Constitution permit jxn to be exercised here? The traditional test to find out is the minimum contacts test.
Roughly, there must be at least a minimum number of contacts of sufficient quantity and quality that it would be fair and just to exercise personal jxn.
For example: did the defendant engage in business dealings in the jxn? Did they avail themselves of the benefits of the jxn's law (e.g. by entering into contracts which the jxn's law could be called upon to enforce in some manner). Do they solicit business within the jxn? Do they sell goods or services, directly or indirectly, to people in the jxn?
The more contacts there are, the more likely that jxn will stand. If there are few contacts, then it is less likely. However, where a suit is closely connected to a particular contact, personal jxn may be found with less of a contact than if there is no such connection. (E.g. if you only do business with one person in California, then probably only that person would be able to sue you there based on that contact)
Some contacts are too attenuated or minor to support personal jxn, but they're the exception, particularly where we're dealing with business matters.
The other important thing to note about personal jxn is that it is waivable. The law permits someone to consent to personal jxn. You often see this sort of thing in contracts. But going to court to defend yourself will count too. If you want to argue that a court lacks personal jxn over you, then you have to do so in a very precise fashion, lest you inadvertantly waive it, irrevocably. This might seem odd to you, but let me reiterate: jxn is what the law says it is, and the law says that personal jxn is waivable, and has to be brought up in a very specific way, at a very specific time (immediately, basically), or else it is waived. It has nothing to do with what country you're in (unless that matt
It is like Texas Instrements has no obligation to maintian thier calculator's fitness to calculate if you turn it into an MP3 player.
They do if they enter into a contract that says that they do.
It is almost as if the GPL people want everyone in corperate software and companies to not tuse GPLed software or let the GPL people run thier companies.
Actually, that's always been a criticism of the GPL. Businesses would prefer something more like BSD, frankly. All you're arguing about is the degree to which the GPL interferes with them.
Extending the GPL to cover manufacturer's hardware or force abitrary pattent obligations/restrictions is not simular in spirit.
I disagree. The spirit of the GPL is to try to have and preserve the freedoms it identifies. The Tivo model is an attack on the purpose of the GPL, which is to keep software derived from GPLed software available under the GPL and available for practical use by users. Being unable to run modified Tivo software on a Tivo because Tivo has put artificial barriers in place is hostile to the GPL's values. It's very much in the spirit of the GPL to shut that down.
A good lawyer would not do these things
Want to bet? It depends on the audience. Frankly, most clients aren't even interested in the whys and wherefores; they just want a certain or at least highly probable answer, preferably that 'yes' or 'probably yes' they can do what they want to do. Usually they're not interested in more than that unless the answer was 'no' or 'probably no,' in which case they just want to know the easiest way to get to a better position.
Now, if I were talking to a lawyer, or a judge, or someone who knew what the hell they were talking about, or was even interested in what the law actually is about, then I'd have to explain myself better. But your posts are just awful. Responding to them in detail would be a waste of my time and most likely lost upon you anyway. It's like the difference between running into Noam Chomsky at the grocery store, and having a meaningful discussion of politics, and running into Lyndon LaRouche at the liquor store, with whom you are never going to have a meaningful discussion about anything.
As for a supposed inaccuracy, I'm afraid not. The GPL does require an obligation on the part of the licensee -- he has to distribute his modified work under the GPL if he distributes it at all. That he has a choice in whether to distribute or not doesn't change his obligation as to how he must do so if he does so. I'll grant that it's very license-like, and that part of the subject matter is a license, but the GPL as a whole is a contract.
In any case, you're beneath talking to, and you're laughably wrong about pretty much everything you've opened your mouth about. I'm more than happy to discuss these matters in the future, but only once you've actually learned about them. Right now you're solidly in the realm of 'making crap up' and I really don't feel like trying to drag you out of your delusions if you're going to fight it.
How can we say that DRM, a type of work distribution, can be mutally exclusive from copyright?
We change the law. The new law basically says that if a work is copyrightable, and is in fact copyrighted, then it lasts for a term of so many years. But that the copyright ends immediately if DRM is applied to it by certain parties (e.g. the copyright holder, or people he has licensed to do so). This forces the copyright holder to not only avoid DRM (if he wants to keep his copyright) but to make sure that he makes it clear to licensees that they had better avoid it too, as a condition of the license between them. Further, we make sure that there's a cause of action by interested parties against a party who puts DRM on a work causing it to enter the public domain, so that if a licensee does in this way cause early termination of the copyright contrary to what the copyright holder wanted, the copyright holder can sue the licensee for damages since the work wasn't meant to be DRMed.
Then we also set up a DRM board at the Copyright Office with the job of running public information campaigns about the status of DRMed works and cracked public domain copies, of coordinating attacks on DRM, of coordinating access to cracked copies so that there is a better alternative to DRMed copies of a specific work, of helping to fund cracks against DRM if necessary (e.g. if someone comes out with DRMed 8 tracks, that's going to be unpopular enough that we can't rely on the community to go after it itself), and so forth.
The author still maintains his copyright regardless of how its distributed.
There's no rule that says that that's how it has to be. Copyright is an artificial monopoly granted by the government. It normally has various strings attached to it; conditions that the applicant has to fulfill to get a copyright. This can just be one more.
I think DRM from this perspective is a Good Thing.
I'd rather that artists were popular because of their works, and that the public could generally ignore distribution methods. You're very wrong about it being a good thing, you just seem to have a natural 'glass is half full' mentality.
Why be suspicious? That's how tv schedules are put onto the Tivos to begin with, as I understand it, and recording tv according to a schedule is one of the big functions of the Tivo. Heck, if you really want to do it regardless of the users, I'd put in a wireless card, and so long as the connection was working, only display a message that said something generic like 'Starting Up for the First Time -- This will take a few minutes' rather than say that it's furiously dl'ing its software from the best open WAP it can find. It would only ask for a network connection if it really can't get one itself.
Consequently, your claim that the GPL(v3) is "still relying purely on copyright law" is factually incorrect.
No, you misunderstand me. The only thing that makes the GPL enforceable is still copyright law. Being enforceable, it doesn't matter whether it goes outside of copyright law with regard to what it asks for in return; that doesn't make it less enforceable.
patent litigation is very specifically not development
Well, if there's an applicable patent, that patent will prevent the use, creation, modification, distribution, etc. of articles embodying the patented invention. For example, if Unisys had released a GPL'ed GIF viewer when the infamous GIF patent was in force, then while it would not be a copyright infringement to modify and redistribute the program, it would nevertheless be a patent infringement to do so. Thus Unisys could release a program under the GPL, but it would be worthless to everyone since the effect would be the same as if it had not been so released. This could easily be abused so that Unisys could unfairly get good publicity, or could selectively allow or disallow some modifications of the program under additional terms relating to the patent, while still being under the GPL as well.
In any event, whatever words are chosen to describe it, the new GPL departs from the safety of default copyright protection (for which you never needed to express agreement), and heads into the shark-infested waters of a non-copyright-based, user-activity limitations clause that cannot carry default copyright protection because patent litigation is not intrinsically relevant to copyright.
The problem here is that your statement is just utter nonsense. Again: what gives the GPL teeth is that it is illegal to modify et al the software without permission. The GPL is permission, but with a string attached. It doesn't matter what the string is. The string could be a reciprocal grant of rights, the string could be a payment of money, the string could be attribution, the string could be unicycling across the Brooklyn Bridge wearing a gorilla suit. It doesn't matter. There is no such thing as contractual clauses that have to be "instrinsically relevant to copyright" and in fact, that's the stupidest thing I've heard on Slashdot in a couple of weeks. Just forget the idea, as it couldn't be more wrong.
A litigant could even claim that his right to sue for alleged patent infringement is being unlawfully hampered by that clause, because by copyright law he would still be allowed to distribute the relevant work and now cannot, which indicates a conflict with copyright law.
That also is nonsense.
It's easy to see restraint of trade through imposition of non-contracted licensing terms being conjured up here as well, since giving away the right to sue is clearly a contractual term, not a copyright one.
That too (especially since the GPL is, and always has been, a contract).
Whatever one may think of such claims, they are at least strongly arguable ones
Actually, I think they are insipid claims, that no one would ever argue, and that the guy in the gorilla suit on the unicycle is acting more seriously and intelligently than you. You have no idea at all what you are talking about. You need to stop posting and learn something about this subject before you embarass yourself further. I do not often pull rank, as it were, but please bear in mind that I am a copyright lawyer. I have studied licensing, I have written licenses, I deal with them pretty often, in fact, and I am telling you that the patent related clauses in GPL3 do not weaken it one little bit. In fact, similar clauses are fairly common in software licenses between developers. There's no reason for the GPL to be any different.
there has to be a presumption that without the restriction, there would be less free software.
That's correct. I think that this might be borne out by the large number of works that are derivatives of public domain works, but which are copyrighted. E.g. nearly any Disney cartoon you care to name. The BSD counterexample is interesting, but BSD has waned in popularity next to the GPL, and even if it is only perception that is the cause of this, that would seem to indicate that there might be a number of authors who are themselves motivated by the prospect of being able to use the work of others in a GPL-type situation. This group might not be interested in using the BSD license at all, since it doesn't really do what they'd like.
FWIW, I'm a copyright attorney, so I've thought about this a bit. I would argue that it's not intended to boost the long term outcome at the expense of the short term, it's designed to incentivize creation and publication period. That is to say, without copyright, there would be little monetary incentive to create and publish new work. There might be other incentives, but (I would argue) [American] copyright law only really considers monetary incentives to be of value.
Small world; I also am a copyright attorney.
While our current copyright law has strayed far from the path, as I'm sure all would agree, I think that at the heart of the system is a desire to serve the public interest in the following fashion. There seem to be three distinct, but related, public interests with regard to creative works. The public wants original works to be created and published, the public wants derivative works to be created and published, and the public wants to be as free as possible with regard to those works. An ideal world, then, would be one in which everyone who wanted to create and publish a work would, regardless of whether it was original or derivative, and that everyone could freely make, use, and distribute copies as they saw fit, probably resulting in public, private, and personal libraries being as large as feasible given external considerations (e.g. how many books can you fit into a house).
We can measure one copyright regime against another by looking at how well each of the interests is satisfied, adding them together, and determining the net satisfaction.
Our baseline is a system where there is no copyright at all. Only if a particular copyright system produces a better result than none would it be better than none at all. Let's look at each of the three interests in turn. First, there will be some creation and publication of original works, as we know from history (since copyright is not that old). This is because copyright only provides one incentive: the possibility of money which is derived from exploiting the copyright monopoly. Other incentives exist, however, having nothing to do with copyright. Examples include fame, a desire to educate on some subject (this can range from religious texts to scholarly works, etc.), money derived from being first to market, money derived from being commissioned by someone else (this is what's responsible for just tons of fine art), money derived from copies as specific tangible objects (this is most of the rest of the fine art -- original copies are worth thousands or millions times more than mere prints), personal satisfaction (e.g. art for art's sake), practice (e.g. student assignments, art studies), etc. American copyright law doesn't really consider these to be valueless incentives, but it can't really contribute to them; how could the law mandate fame for authors, for example? Second, there will be somewhat more creation and publication of derivative works, also as we know from history. The same incentives exist for these types of works, but they are magnified significantly. This is because derivative works involve less of an investment by the author, and so less of an incentive is actually required. Third, if there is no copyright, the public interest in the greatest freedom with regard to the
Have I missed something?
Well, what I would do would be to ship the Tivo without the GPL-based software, and instead with a small, custom program that was severely locked down, and which would then go to Tivo's website upon set-up, and download the GPL-based software. This is because the magic word you used was 'with.' By distributing the hardware separately from the software, the former wasn't distributed with the latter. Problem solved for Tivo, but you, the user, are still SOL if you want to run your own software.
The longer the license, the more susceptible it is to loopholes.
That's not at all true.
Hell, the only times I'd worry about trying to fit a contract onto a single page are if I either: 1) want to project the image that the negotiation will be simple and straightforward (even if it's not), or; 2) am hoping the other side won't read it carefully (since it can't be a big deal, fitting on just one page), and I'll gain an advantage for my client. A good example of the latter are A&R contracts. They could be written on a napkin, and totally screw up the career of a promising band.
The other comments are useful, but also note that you could release a regular written document under the GPL itself. It might not be the best fit, but it is doable.
I disagree with you.
While the public domain program cannot be made unfree, the original portions of any derivatives of it are not at all free. If the software is popular, and people make a lot of derivatives, you're ultimately left with only the first program being free, and nothing that comes after it being.
The FSF, is looking at the net amount of freedom (i.e. how free you are with regard to all of the software descended from the original program), and finds that limited impairment of it can nevertheless result in more of it over time than the alternative you suggest.
Similar logic is behind the copyright system (where the ideal is maximum creation and publication and freedom, it is most closely approached by temporarily limiting some of these, so as to boost the long term outcome at the expense of the short term) and I doubt that most people would object to it in the abstract, though we might differ on how best to accomplish it.
I don't see any reason why a software license should be forcing it's values on hardware vendors. When you buy a Tivo, you buy a TIVO, not a PC or experiment/development computer. If TIVO has to only run thier signed code on the unit in order to get hardware licensing or content licensing from others, then thats thier obligation not the GPLs place to break.
Well that's hypocritical, then.
If Tivo licenses hardware that imposes certain requirements on them, and then they license GPL3 software, which imposes other, mutually exclusive requirements on them, then Tivo is up shit creek. They cannot meet all of their obligations, and are going to end up breaking one of the agreements. The proper thing for them to do is to look at the licenses ahead of time and choose one. But it makes no sense to say that hardware developers are more important than software developers, and therefore the latter should yield to the former. You can argue that people should be allowed to license their product as they like, or that they should not be allowed to license it at all, but don't go around arguing that one group can license as they like, and that everyone else should bow to them, and not get into conflict.
I don't think that your analysis is correct here. The GPL is still relying purely on copyright law; it only applies if you engage in activity otherwise prohibited by copyright law (e.g. copying, distribution, preparing derivatives, etc.). The difference is that rather than limit what it requires in compensation for the copyright license it grants to the copyright field, it's now asking for more. What it asks for doesn't really weaken it. Lots of copyright licenses are made in exchange for money, which is also outside the ambit of copyright.
I don't think that it's getting into EULA territory, really, as the GPL still would not apply to end users. It only applies to people who want to engage in covered activity. Mere use isn't one of those.
And also, EULAs continue to grow in strength, though the main issue there has to do with how they're formed, not what they deal with. No one would have any argument at all against a EULA that was presented and agreed upon in a different fashion. In regard to formation, the GPL is on the same ground it always was.
they are going to remain that way to the day I die since copyrights are that long if there is no DRM.
I did say that we need to scale it back.
I wish we could have that without DRM but the sad fact is there doesn't seem to be a way (at least in our lifetimes).
Like I say, it's entirely possible, but we've got to fight for it. If you give up without a fight, then of course you'll lose.
I want all legal services to be free.* Were do I go to fight?
Your state legislature and state bar are good places to start.
Of course, plenty of legal services are already free -- criminal defendants can have free lawyers, if they want them, and most states require that lawyers licensed to practice there do a certain number of pro bono hours every year, meant to help those who can't afford it. And there are legal aid groups which do the same sort of thing. Contingency fees are there to help clients who can't personally pay for a lawyer, but who have a good case where the lawyer thinks there will be money later, and where both are willing to take the relevant risks. And this isn't like medicine; you can always represent yourself.
But maybe you could have a single-payer legal system, just like a socialized health care system. So long as lawyers got paid their hourly fees by someone, and it was in an ethical fashion (we're acutely aware of the danger of being paid by someone who's not the client -- it can lead to ethical breaches where you don't put the client first and foremost), and people had just as much freedom with regard to their legal matters as they do now, I doubt we'd really care.
If people respected (and pushed to fix) copyright then publishers and authors (and the music/movie industries) probably wouldn't think it was necessary. As it is the internet-going masses don't, so both sides have black eyes.
I don't know about that. If copyright were fixed, then I bet more people would respect it, and act lawfully. Generally, I think that copyrights boundaries ought to be determined in part, by looking to the norms the public has. If most people copy and distribute works freely over the Internet, then we ought to seriously consider just legalizing that. Yes, it would cost the public in that some authors wouldn't bother to create anymore, but would the gains in terms of freedom with regard to existing works outweigh that loss? If they would, then it's a good idea. Then you end up with a lot of people acting lawfully, but not having to change their behavior, because the law against them turned out to be a bad law that wasn't worthy of their respect anymore.
OTOH, some other boundaries would still be worth having. Legalizing non-commercial infringement by ordinary people doesn't mean that we would have to legalize commercial infringement, or infringement on the part of businesses, etc. And I think that people consider them to be different in terms of their norms.
Besides, the industries will always take as much as they can grab, and they will always try to support those authors and publishers that exist now, even if at the expense of their sucessors. This is because they are only motivated by their own goals, and not what best serves the public or creation as a whole. It's up to us -- the public -- to step forward and make things better.
14 years is pretty much good enough, maybe a renew to 28 years.
Sure, but you're not actually thinking about it, you're just parroting what the terms were centuries ago. That's no good. What you need to do is to think of what terms -- and what restrictions -- will produce the greatest public benefit overall.
Personally, I think that terms should be very short -- 2 to 5 years or so -- but be renewable frequently, up to a maximum term of about 15 to 25 years. This way, if an author doesn't bother to renew, the work hits the public domain that much faster. Little excess copyright is wasted on them to the public's detriment. The overall term length ought to be determined by how long it takes, on average, for most of a work's lifetime economic value to be had by the copyright holder. Actual economic studies place it in the range above. It's not wild-ass guessing. Where an entire class of works tends to 'age' more rapidly, we could even provide for a shorter overall term by having fewer and more frequent renewals. Computer software is a prime candidate for this. That should probably not be copyrighted for more than 5 years.
But it's rare that an author wouldn't bother with copyright,
Hah!
Until quite recently, when you published something, if you didn't register for a copyright, the work immediately entered the public domain. And if you didn't renew, the work hit the public domain then. Most works created, as it turns out, were never worth registering, and those that were, were never worth renewing. Having copyrights granted automatically with very long terms that don't require renewal was probably the second stupidest thing ever in the history of copyright. If it wasn't for the fact that the original proponent of the idea is dead, I'd love to kick him around a little. He's fucked us all up. It's imperative that we get rid of this ASAP.
Here's some pre-copyright examples, which can be found in your convenient, pocket-sized, unabridged OED:
The fun thing to remember is that these uses of the word were during the height of piracy on the seas, and that everyone hated and feared pirates, as they would kill you, ransom you, steal from you, sell you into slavery, etc. In order to imagine how emotionally loaded the word was, if it had been coined today, it would have been 'terrorist,' or possibly 'rapist.'
Yes, it is necessary, or else everything would be pirated to hell and back.
And piracy is bad, because?
Remember, while I'm a copyright lawyer, I'm also thoroughly a utilitarian when it comes to copyright. This means that I only care about what best serves the public interest (which is divided into three sub-interests: creating and publishing original works, creating and publishing derivative works, and having no or minimal copyright) and not at all about authors or publishers, save for how that might affect the public.
the issue of creators' rights
Their rights are what we choose to give them, and we should only choose to give them rights when, and to the degree that, it serves our purposes to do so. Copyright isn't a civil liberty or an inherent right. It's artificial and granted for the purpose of the public good, like a municipal cable TV monopoly.
Basically, you guys want to stack everything in favor of the pirates and against the creators.
No, only in favor of the public. If the authors benefit from this, good for them. If not, I don't care. I take into account how the public benefit is affected by the benefit of authors (in much the same way that a farmer who raises eating chickens is concerned for the health of his flock up until he's ready to slaughter them, since this is what is best for him -- that the chickens would prefer a long and natural life is of no concern) but I am never going to support giving authors anything that is purely at the expense of the public with no greater benefit involved. That would be waste.
This means that where pirates interfere with copyright that maximally serves the public interest, I am against those pirates, since they are ruining it for the rest of us. But where copyright is excessive (as it is now, IMO) and does not maximally serve the public interest, then some of the piracy is perfectly okay and in fact should be legalized, to reduce copyright down, closer to where it is ideal again. More copyright is not a good thing; in fact, it's generally worse than less.
But it would be quite unlikely for me to support no copyright at all, which is basically what you're accusing me of. I wouldn't say I never would, but the situation that would give rise to that is pretty improbable.
Besides, the GPL is essentially a form of DRM (digital rights management).
No, the GPL is basically a contract. It doesn't interfere with the underlying law, in the way that DRM invariably does. For example, it is possible to reject the GPL, and then use portions of GPL'ed code pursuant to fair use, and still be acting lawfully. Whereas, if a work is DRM'ed, then it is going to interfere with fair uses just as much as with unlawful ones, because it is a simple, stupid restriction that cannot tell the difference.