Copyright harmonization The US should not go beyond the 50 years of the TRIPS agreement. 50 years from first publication, copyright expires. That's it. Free Elvis! (The US can do that unilaterally. Less than 50 years requires international negotiation.)
Actually, the US should abandon all copyright treaties. That, we can also do unilaterally. Copyright harmonization isn't even a good idea. Each country should decide how much copyright, in terms of length and scope, is best for their own people. So long as any given author is not precluded from getting copyrights in all the jurisdictions where his work is copyrightable, nothing more needs to be done. And n.b. that that doesn't mean that formalities can't exist, just that they can't be mutually incompatable.
Make copy protection illegal for uncopyrightable material If you can't copyright it, you can't use technical means to protect it.
I don't think that this would be constitutional given the First Amendment. OTOH, it would certainly be constitutional to deny copyrights for copyrightable material that was copy protected by or under the authorization of the copyright holder. And it would also be constitutional for it to be legal to break copy protection, and for the government to assist or fund efforts to do so, and to help distribute copies of the thus-uncopyrighted works to the public.
Enforce the Audio Home Recording Act Any arrangement between manufacturers and/or content distributors to restrict rights guaranteed to consumers is illegal restraint of trade.
That's not how the AHRA works.
Free spectrum, free content If it goes out over the free airwaves, like TV channels for which broadcasters do not pay, it can't be copy protected.
See above re: copy protection generally resulting in a forfeiting of copyright.
And we'll also need shorter and more granular terms, to re-strengthen formalities (registration, deposit, notice, frequent renewal), to shore up work made for hire and transfer provisions, broad exceptions for works involving computers and for the public, making certain classes of works uncopyrightable (such as architectural works, fonts and typefaces, clothing designs and costumes, hulls, etc.), to expand the government works provision, to make first sale more uniform, etc.
Basically, anything that stops short of making copyright such that it best serves the public interest is just not good enough. Don't set your sights low.
No, but where enrichment will naturally occur, I don't give up that enrichment without a compelling reason.
So is someone being evil in refusing to enrich your life without monetary compensation or not?
They are not being evil at all. However, if they want monetary compensation, then I'd say it's a good chance that they're acting in a self-interested manner. That's fine, and I have no problem with that. However, it's just as acceptable for me to act in a self-interested manner, and it is in my interest to get creative works for free. This puts us at loggerheads unless we can find a way to serve both of our self interests more than they are being served in the natural state of things.
I'm sorry, but enrichment is not a right, it's a luxury
I disagree. The right to copy and distribute creative works created by another is a subset of the right of free speech. When I stage a performance of Hamlet, I am exercising one of my rights. What isn't a natural right is the right to control whether or not people can engage in free speech for particular works. This right must be artificially created, ultimately by the people that it would be used against. Why would they do so, unless it served their ultimate self interests to do so?
And undermining copyright by allowing people to make unlimited copies on peer to peer networks doesn't encourage. It destroys a valid mechanism for ensuring artists are compensated for the works they do and have some creative control over the final results.
Encouraging the creation of original works is something that should be done, of course, but only up to a certain limit. It is equally important to encourage the creation of derivative works, and to have no, or minimal restrictions upon those works, and even then for any restrictions to last for the least amount of time. Pursuing only one of these policy goals is likely to result in a lesser public good than if attention is paid to all of them, and to maximizing the net public good. Of course, the last goal -- having minimal or no copyright in scope and length -- is the most important, as history has shown us that society can get along just fine without copyright, but that free speech is of critical importance, regardless of whether censorship is a tool of the government or of private interests.
I'd also like to point out that "ensuring artists are compensated" and "have some creative control" are not goals of copyright. At most they are only means by which the goals of copyright can be pursued. It is never in the public interest to reward artists purely for their own sake.
treating artists with respect
Nor does copyright have the least thing to do with respect for authors. As a copyright lawyer, and as an artist, let me say that I couldn't care less about authors. I'm only interested in exploiting them, via copyright, so that they produce the most original and derivative works they can, for the least incentive and reward. If I can best exploit them, and best serve the public, with generous copyrights, then I'm all for that. But if the public is best served by exploiting authors with weak and small copyrights, then that's the better plan.
I'm not saying my life wouldn't be enriched by it... Someone's decision to make their music only available to those who are willing to pay for it doesn't hurt me in the slightest.
These statements don't really jibe.
I think that we can all agree that our lives would be greatly enriched if all creative works were in the public domain: those works would be available for us to simply use and enjoy as they are; for us to make and distribute copies of; to publicly perform or display, and; to serve as the bases for derivative works. Without that being the case, we are harmed. The only way that that harm can be tolerable is if it is incurred in the service of a benefit even greater to ourselves than we'd have otherwise. And that's the point of copyright: by accepting a limited, temporary harm now (i.e. copyright), we can encourage the creation of more original works, and then drop those original works into the public domain rapidly, maximizing our net benefit. Grant too much copyright, and we don't maximize our net benefit. Grant more than that and we're worse off with copyright than we were without. It's a lot like other government-granted monopolies, e.g. on utilities such as electricity, water, or cable tv.
The thing is, benefits to the recipients of the monopolies, for their own sake, are wholly inappropriate. No one says that Comcast ought to have a monopoly on cable tv in a town because they're really nice people. No, the reason is that if they are allowed to charge rates higher than where the market would have them, they'll be willing to accept the burden of upkeep and improvements on the local cable tv infrastructure. Copyright is quite similar. Authors don't deserve copyright. They get copyright essentially in order to bribe them to create works which we will then place into the public domain. And we must limit copyright sharply so that we wring the most works out of the authors at the least cost to ourselves.
To decide to take advantage of someone else's work without paying on their terms strikes me as very unfair, especially if there's nothing they've done that makes me need that work.
And I disagree. First, it's the fruit of their labors that is at issue. No one is proposing that authors be forced to labor at creative pursuits. Authors will always have the choice of whether or not to create, based upon whether they feel that it's in their own interest to do so, where the factors they consider are money, the love of art, reputation, etc. Copyright is a way to add more potential money, and thus encourage artists further.
But secondly, and more importantly, whether authors should have rights to control what other people can do with creative works is a choice left to the other people who will bear the brunt of that choice; not to the author, who will nearly always seek more control over others.
Plus, it's perfectly ordinary to take advantage of what other people do without paying them on their own terms. Plenty of authors with public domain works would love for you to pay them. But you don't have to. If your neighbor renovates their house, and plants a beautiful garden, and gives a big cash gift to the neighborhood school for improvements, that'll all raise the value of your house tremendously. And you needn't pay them a penny for it. And it's fair.
There are some minor errors in it, and I'm busy right now, but hopefully I can go through line by line and post about them this evening.
Still the main piece of advice he gives -- immediately get a lawyer who knows what he's doing with regard to these sorts of cases -- is good advice. Waiting too long, or going without one for a while can irrevocably screw up your defense if you don't do the right things, in the right order, at the right times.
Quite frankly, after witnessing the blanket banning of entire classes of technology that was the DMCA, there is no such thing as too much cynicism.
Sure, but that's Congress, not the courts. And while it may be incredibly stupid, if it's constitutional, then it is something that Congress is allowed to be incredibly stupid about; the courts would lack the power to do anything about it.
What I'm objecting to is that you're directing your ire to the courts, who I think are not particularly to blame here. I disagree with them on some matters, but I don't think that they are corrupt. I would agree that most of Congress is mostly corrupt, however, and that the rest isn't much better.
I'm sure you don't. Being a lawyer, you get paid either way, and in fact the artificial scarcities created by granting exclusive entitlements like these ensure that they'll be plenty of legal squabbles that provide rich opportunities for new revenue streams.
Oh, it has nothing to do with that. I think that the idea of a copyright or patent is a genuinely good one on its own merits. The trick is ensuring that our implementation of the idea remains genuinely good.
It really didn't need a bunch of carpetbaggers in suits coming in starting to stake questionable claims over vast swaths of landscape.
I agree. Patents should only be granted when they provide an incentive to invent, use, and disclose, and the resulting public benefit is greater than if there were no patents. I thin that there are enough 'natural' incentives in the software field that there's no need for patents there, currently. Inventors will invent, use, and disclose enough without artificial incentives. Adding patents doesn't benefit the public, and in fact probably harms them. Maybe at some point in the future the software industry will slow down and patents will be a good idea there, but not yet.
Yes, but remember two things. First, that there is a time limit for filing a patent. If you don't file rapidly enough, the invention is in the public domain. Second, if an inventor sits on an invention and never reveals it (thus not starting the clock for the filing deadline), then it's basically a nullity, and outside of what we ought to be concerned with. It'd be no different from an author who writes a novel and never shows it to anyone.
It does not, because being quicker to file than the other guy doesn't make you the actual inventor. I'm sure you're thinking of a parallel with work made for hire authors, but I don't think that it works, particularly given the long history of caselaw that led up to that, and the concerns that exist with regard to it even today.
So you're saying that if I thought about the problem, and figured out how to build a transistor in my garage, that I would be the inventor of the transistor? Sorry, but that's just silly. Later inventors are not inventors at all.
If he did it independently, he's just as much an inventor as the first one.
But who the hell cares? The patent system is meant to encourage the creation, use, and disclosure of novel inventions. We do not need to encourage someone to invent fire, or the wheel. Given the purpose of the patent clause, it cannot possibly mean also-rans to be inventors.
Being "first" does not mean that you should magically "deserve" a monopoly at the expense of someone else
Then the correct answer is to grant an exception for independent inventors who invented prior to publication. It is not to change who gets the patent. Merely changing who gets the patent would result in the same injustice you complain of, just for person B, instead of person A. That's because there'd still only be one competing inventor who gets the patent.
However, the current system has been in effect for so long, most people can't understand that point anymore.
No, I have significant problems with the patent system (although surely not as many as a reform-minded patent lawyer, who would be more familiar with the Patent Act and the PTO). But I don't have a problem with the general utilitarian model of incentives and exclusivity. I assure you, it is the kind of thing I think about carefully.
Simply make only the first-to-file eligable for the patent. Another inventor can't patent the invention, but he can invalidate the first-to-file's patent by showing that he came up with the invention first. This would avoid any possible constitutional issues while greatly simplifying the USPTO's job in most cases.
It wouldn't simplify anything. In order to determine who was the first to invent, you'd still have to hold an interference proceeding. The only difference would be whether there'd be a patent in the end, rather than only rejecting one of the applications. I don't see how this helps at all. It probably worsens things, in fact, since the inventor who didn't file first has little incentive to even bother.
Just look at the Kelo decision: what is plainly unconstitutional to nearly everyone in the US, is somehow OK to a handful of arrogant, liberal judges.
Actually, few people seem to think it's unconstitutional, and fewer still are in any position to actually know, as thorough understandings of the Constitution are few and far between among laymen. Rather, people just don't like it. That's fine, of course; the Bill of Rights simply sets a minimum standard for the country. It's entirely possible to pass laws that are more stringent than the 5th Amendment takings clause, and most states already have.
Personally, I don't have a problem with Kelo. I think it's pretty well founded given the precedents it builds upon, and as it doesn't disturb due process or just compensation requirements, it's not even a big deal.
Ginsberg has even gone so far as to say that she will look at foreign laws and trends before deciding a case. Which, I shouldn't need to say, violates her oath to defend and uphold the Constitution of the United States.
Actually, you shouldn't be saying anything, as you're just making yourself look to be more and more of an ass with every breath. Considering foreign and historical laws is commonplace in all American courts and always has been. Many states started out as colonies of other countries, and kept the laws of the foreign country after gaining independence. This makes pre-1776 English laws (and possibly some French, Spanish, Russian, and Hawaiian laws relevant). Courts have also always been perfectly willing to look to see what their bretheren in other jurisdictions are doing. If a case is wisely decided, or merely does a good job of explaining the a law that is identical to a local law, it'll get cited. State courts routinely consider and cite laws of other states, and sometimes even countries. Federal courts do likewise, particularly where there are international concerns, such as interpreting treaties. These out of jurisdiction cases are not binding, but they may be persuasive, and that's perfectly fine and part of our tradition for centuries. Like I said, you're looking like quite an ass. And you're just getting started!
So, to summarize, if you want to see judges actually strike down unconstitutional laws, vote Republican.
I think I'll pass on that, as a rule. Not only because I think that political parties are a bad idea, but also because I hate people who try to manipulate the courts. Political affiliation shouldn't matter in picking judges and justices. Competency, legal experience, and a commitment to justice are what's important. IMO conservatives have been worse on this: J Thomas is an idiot, and CJ Roberts and J Alito show every sign of being flunkies. Whereas I don't care for Scalia at all, but I can respect him. We disagree, but he doesn't really have a dangerous political agenda in delivering an independent and apolitical branch of government into the hands of a party, much less one with control over the other branches. I also didn't like J Marshall, who should not have been on the Court, and was a liberal. But J. Douglas was great.
Which would include Social Security, Medicare, welfare
How are they unconstitutional? Congress can spend federal money however it likes, so long as it does so 'for the general welfare.' All of those programs qualify, as it helps everyone to have a safety net (even if some of us don't need it), and helps us avoid severe class differences that would be harmful to the American people (as has happened before).
abortion (yes, people, even abortion),
So you're saying that you want the Court to overturn the laws that Congress and the states have passed regarding abortion? Well, I don't particularly disagree with you. I also support abortion rights.
massive "transportation" bills
Spending clause again.
For those who don't know, it says that any government functions not specifically assigned to the federal government, and left up to the state
They were going to lose until the decision was significantly reined in. If the Court was simply pro-Sony in that case, it wouldn't've mattered. I'm sorry, but you're completely wrong about the judicial system. You've let your cynicism blind you.
what about the wal-mart class action suit.
I'm not familiar with the case, so you'd really need to provide a cite.
Of course, this is unconstitutional. The Constitution requires that patents only be granted to an inventor. An inventor is the first person to develop a discovery or technology. The second guy to do so, even if he does so independently, is ultimately just an also-ran. If someone who had been unaware of them spontaneously invented the wheel, why the hell would he deserve anything? Why would it matter whether he did so thousands of years after it was invented by the actual inventor, or a day?
If other countries want to do that, then that's up to them. I'm not going to tell them what to do. But not only is it a bad idea here, it is one that would be entirely unlawful. It's only in here due to a combination of laziness on the part of the PTO, since they could avoid having to run interference proceedings, and greed on the part of large, corporate inventors, since they can act more quickly than smaller inventors.
I haven't had a chance to look at the latest bill, but I doubt there's much good in it, if anything, if this is any indication.
there is a difference between interpreting existing laws, and legislating from the bench
Yes, but both of them are part of our common law traditions. Courts created pretty much the whole of contract law, tort law, property law, etc. If Congress had a problem with the idea of secondary liability in copyright -- and n.b. that the idea of secondary liability is a common one throughout the law -- then they'd pass a law against it, which would bar the courts from having it there. But not only have they not done so, they've passed laws supporting it. And this is not particularly different from how the courts created exceptions like first sale or fair use.
ok.. here's an example. betamax: legal** defendant - sony, a large corporation p2p: illegal** defendant - millions of american citizens, not a large corporation
The problem is that in Sony, the plaintiffs were the movie studios, also large corporations. Also, Sony was a 6-3 decision against Sony while the Court was deliberating. It only changed into the 5-4 in Sony's favor when a compromise was reached that brought in JJ Brennan and O'Connor. You're going to need a better example.
really? are you sure? have you read the souter eminent domain ruling recently?
I imagine that you're talking about the Kelo case. Honestly, I agree with it. The state still has to pay fair compensation (and can be sued for more money if the person losing their property thinks that it's not enough) and it is ultimately using it for the public good, albiet in an attenuated fashion. The states remain free to impose more stringent limits upon themselves in their own laws or constitutions, and most have. The opinion did not come out of nowhere; it's just part of a long line of similar rulings dating back into the 19th century. If you didn't know anything about eminent domain, it might shock you, but if you do, it's not all that surprising. If I had been on the Court, I would have ruled with the majority, and I am not corrupt.
As for "judicial activism" the very notion is absurd. It doesn't exist. Courts interpret laws every day, and have done so in our legal tradition for nearly a thousand years. They can't not do it; it's at the core of their purpose. Just because you disagree with their interpretation doesn't mean that they are wrong, or that both interpretations aren't valid. You need to calm down.
i've seen issues of nearly mirrored similarity ruled in two different directions depending on weather the defendent or plaintiff was the corporate entity
And if you'd provide examples, you'd support your argument.
Your Napster example falls flat as one only needs to know that unlike Limewire, Napster keep a list of files being shared on a central server. That's an important distinction. Limewire keeps no such centralized list and should not be held accountable for what other people do with its product any more that a pistol manufacturer should be held accountable every time someone uses one of their guns to rob a bank or commit murder.
I'm sorry, but you're wrong. First, LimeWire is similar, in its decentralized nature, to Grokster. Yet Grokster also lost its court case. Mere decentralization isn't enough protection. Second, the Grokster case says that the technology providers can be held liable for what other people do, not on the mere basis of the technology's capabilities, but on the basis that the provider may have encouraged the illegal behavior of the other people. Borrowing from your gun example, just making a gun isn't enough to cause liability. But advertising the gun as being well-suited to murders, and encouraging illegal gun violence on the part of the customers, would be.
I strongly recommend that you actually read the Grokster opinion from the Supreme Court. you don't have to agree with it, but it's important to know what the law is currently.
Blocking files or searches just isn't going to be possible.
That's what Grokster and Napster said, too. Look what happened to them.
But Limewire has a pretty clear defense
The Grokster case teaches us that that argument is only a defense to a charge of infringement based solely upon the capability of the technology at question to facilitate infringement. It is not a defense when, like in Grokster, the defendant is encouraging infringement when you look at all of its words and deeds.
Yes I fully agree with you on this, theyre screwed, but not because theyre actually breaking the law in the slightest.
I disagree. I think they probably are breaking the law. This is why, if we like things like LimeWire, that we ought to focus on changing the law.
They will be ruled against because the bought supreme court made it entirely subjective, allowing their corporate schills to basically pick and choose what technology is allowed to exist without real public debate or due legislative process. Talk about activist judges..
No, I disagree. The Court isn't bought or being activist. This is a common law issue anyway, which means it falls under the purview of the courts. If we don't like it, we can always legislate, thus overriding them. The real problem is with Congress, not the courts.
I don't think it can be, or should be. I'm simply explaining what the law is currently. I never said I liked it. Would you prefer to be misinformed or uninformed, living in a fantasy world?
No, that was that so many people had stock that they had to register. They were already under the authority of the SEC, however. Pretty much everyone is, right from the get-go.
The real question is, will they be able to prove LimeWire *encouraged* unlawful infringement, beyond simply not developing filtering mechanisms.
I think they will.
they're hoping to expand the previous ruling such that not actively preventing infringement will qualify as contributory infringement
I don't think that's likely.
Here's to hoping they fail, otherwise the door will be open to sue practically anyone (including ISPs and other network operators).
ISPs et al are already shielded by 17 USC 512. These cases don't really matter to them. The real question is whether LimeWire can manage to get into this safe harbor. Napster tried and failed, but I think it's still worth a shot, in the right jurisdiction.
Based on that complaint, it sounds more like they're passively encouraging people, at best.
It's a factor. Take it seriously.
From the Grokster case:
Second, this evidence of unlawful objective is given added significance by MGM's showing that neither company attempted to develop filtering tools or other mechanisms to diminish the infringing activity using their software. While the Ninth Circuit treated the defendants' failure to develop such tools as irrelevant because they lacked an independent duty to monitor their users' activity, we think this evidence underscores Grokster's and StreamCast's intentional facilitation of their users' infringement....
Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony safe harbor.
It sounds as though RIAA is using the new inducement theory of indirect infringement. The rule there is:
[O]ne who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.
In applying that rule, the Court looked at everything from Grokster's business plan, advertisements, technology, and even their name. A little prompt might be a factor in LimeWire's favor, but that fig leaf isn't going to save them.
Slashdot Mirror
Pft. That's totally unreasonable.
Copyright harmonization The US should not go beyond the 50 years of the TRIPS agreement. 50 years from first publication, copyright expires. That's it. Free Elvis! (The US can do that unilaterally. Less than 50 years requires international negotiation.)
Actually, the US should abandon all copyright treaties. That, we can also do unilaterally. Copyright harmonization isn't even a good idea. Each country should decide how much copyright, in terms of length and scope, is best for their own people. So long as any given author is not precluded from getting copyrights in all the jurisdictions where his work is copyrightable, nothing more needs to be done. And n.b. that that doesn't mean that formalities can't exist, just that they can't be mutually incompatable.
Make copy protection illegal for uncopyrightable material If you can't copyright it, you can't use technical means to protect it.
I don't think that this would be constitutional given the First Amendment. OTOH, it would certainly be constitutional to deny copyrights for copyrightable material that was copy protected by or under the authorization of the copyright holder. And it would also be constitutional for it to be legal to break copy protection, and for the government to assist or fund efforts to do so, and to help distribute copies of the thus-uncopyrighted works to the public.
Enforce the Audio Home Recording Act Any arrangement between manufacturers and/or content distributors to restrict rights guaranteed to consumers is illegal restraint of trade.
That's not how the AHRA works.
Free spectrum, free content If it goes out over the free airwaves, like TV channels for which broadcasters do not pay, it can't be copy protected.
See above re: copy protection generally resulting in a forfeiting of copyright.
And we'll also need shorter and more granular terms, to re-strengthen formalities (registration, deposit, notice, frequent renewal), to shore up work made for hire and transfer provisions, broad exceptions for works involving computers and for the public, making certain classes of works uncopyrightable (such as architectural works, fonts and typefaces, clothing designs and costumes, hulls, etc.), to expand the government works provision, to make first sale more uniform, etc.
Basically, anything that stops short of making copyright such that it best serves the public interest is just not good enough. Don't set your sights low.
You demand people enrich your life?
No, but where enrichment will naturally occur, I don't give up that enrichment without a compelling reason.
So is someone being evil in refusing to enrich your life without monetary compensation or not?
They are not being evil at all. However, if they want monetary compensation, then I'd say it's a good chance that they're acting in a self-interested manner. That's fine, and I have no problem with that. However, it's just as acceptable for me to act in a self-interested manner, and it is in my interest to get creative works for free. This puts us at loggerheads unless we can find a way to serve both of our self interests more than they are being served in the natural state of things.
I'm sorry, but enrichment is not a right, it's a luxury
I disagree. The right to copy and distribute creative works created by another is a subset of the right of free speech. When I stage a performance of Hamlet, I am exercising one of my rights. What isn't a natural right is the right to control whether or not people can engage in free speech for particular works. This right must be artificially created, ultimately by the people that it would be used against. Why would they do so, unless it served their ultimate self interests to do so?
And undermining copyright by allowing people to make unlimited copies on peer to peer networks doesn't encourage. It destroys a valid mechanism for ensuring artists are compensated for the works they do and have some creative control over the final results.
Encouraging the creation of original works is something that should be done, of course, but only up to a certain limit. It is equally important to encourage the creation of derivative works, and to have no, or minimal restrictions upon those works, and even then for any restrictions to last for the least amount of time. Pursuing only one of these policy goals is likely to result in a lesser public good than if attention is paid to all of them, and to maximizing the net public good. Of course, the last goal -- having minimal or no copyright in scope and length -- is the most important, as history has shown us that society can get along just fine without copyright, but that free speech is of critical importance, regardless of whether censorship is a tool of the government or of private interests.
I'd also like to point out that "ensuring artists are compensated" and "have some creative control" are not goals of copyright. At most they are only means by which the goals of copyright can be pursued. It is never in the public interest to reward artists purely for their own sake.
treating artists with respect
Nor does copyright have the least thing to do with respect for authors. As a copyright lawyer, and as an artist, let me say that I couldn't care less about authors. I'm only interested in exploiting them, via copyright, so that they produce the most original and derivative works they can, for the least incentive and reward. If I can best exploit them, and best serve the public, with generous copyrights, then I'm all for that. But if the public is best served by exploiting authors with weak and small copyrights, then that's the better plan.
I'm not saying my life wouldn't be enriched by it ... Someone's decision to make their music only available to those who are willing to pay for it doesn't hurt me in the slightest.
These statements don't really jibe.
I think that we can all agree that our lives would be greatly enriched if all creative works were in the public domain: those works would be available for us to simply use and enjoy as they are; for us to make and distribute copies of; to publicly perform or display, and; to serve as the bases for derivative works. Without that being the case, we are harmed. The only way that that harm can be tolerable is if it is incurred in the service of a benefit even greater to ourselves than we'd have otherwise. And that's the point of copyright: by accepting a limited, temporary harm now (i.e. copyright), we can encourage the creation of more original works, and then drop those original works into the public domain rapidly, maximizing our net benefit. Grant too much copyright, and we don't maximize our net benefit. Grant more than that and we're worse off with copyright than we were without. It's a lot like other government-granted monopolies, e.g. on utilities such as electricity, water, or cable tv.
The thing is, benefits to the recipients of the monopolies, for their own sake, are wholly inappropriate. No one says that Comcast ought to have a monopoly on cable tv in a town because they're really nice people. No, the reason is that if they are allowed to charge rates higher than where the market would have them, they'll be willing to accept the burden of upkeep and improvements on the local cable tv infrastructure. Copyright is quite similar. Authors don't deserve copyright. They get copyright essentially in order to bribe them to create works which we will then place into the public domain. And we must limit copyright sharply so that we wring the most works out of the authors at the least cost to ourselves.
To decide to take advantage of someone else's work without paying on their terms strikes me as very unfair, especially if there's nothing they've done that makes me need that work.
And I disagree. First, it's the fruit of their labors that is at issue. No one is proposing that authors be forced to labor at creative pursuits. Authors will always have the choice of whether or not to create, based upon whether they feel that it's in their own interest to do so, where the factors they consider are money, the love of art, reputation, etc. Copyright is a way to add more potential money, and thus encourage artists further.
But secondly, and more importantly, whether authors should have rights to control what other people can do with creative works is a choice left to the other people who will bear the brunt of that choice; not to the author, who will nearly always seek more control over others.
Plus, it's perfectly ordinary to take advantage of what other people do without paying them on their own terms. Plenty of authors with public domain works would love for you to pay them. But you don't have to. If your neighbor renovates their house, and plants a beautiful garden, and gives a big cash gift to the neighborhood school for improvements, that'll all raise the value of your house tremendously. And you needn't pay them a penny for it. And it's fair.
There are some minor errors in it, and I'm busy right now, but hopefully I can go through line by line and post about them this evening.
Still the main piece of advice he gives -- immediately get a lawyer who knows what he's doing with regard to these sorts of cases -- is good advice. Waiting too long, or going without one for a while can irrevocably screw up your defense if you don't do the right things, in the right order, at the right times.
Quite frankly, after witnessing the blanket banning of entire classes of technology that was the DMCA, there is no such thing as too much cynicism.
Sure, but that's Congress, not the courts. And while it may be incredibly stupid, if it's constitutional, then it is something that Congress is allowed to be incredibly stupid about; the courts would lack the power to do anything about it.
What I'm objecting to is that you're directing your ire to the courts, who I think are not particularly to blame here. I disagree with them on some matters, but I don't think that they are corrupt. I would agree that most of Congress is mostly corrupt, however, and that the rest isn't much better.
I'm sure you don't. Being a lawyer, you get paid either way, and in fact the artificial scarcities created by granting exclusive entitlements like these ensure that they'll be plenty of legal squabbles that provide rich opportunities for new revenue streams.
Oh, it has nothing to do with that. I think that the idea of a copyright or patent is a genuinely good one on its own merits. The trick is ensuring that our implementation of the idea remains genuinely good.
It really didn't need a bunch of carpetbaggers in suits coming in starting to stake questionable claims over vast swaths of landscape.
I agree. Patents should only be granted when they provide an incentive to invent, use, and disclose, and the resulting public benefit is greater than if there were no patents. I thin that there are enough 'natural' incentives in the software field that there's no need for patents there, currently. Inventors will invent, use, and disclose enough without artificial incentives. Adding patents doesn't benefit the public, and in fact probably harms them. Maybe at some point in the future the software industry will slow down and patents will be a good idea there, but not yet.
Yes, but remember two things. First, that there is a time limit for filing a patent. If you don't file rapidly enough, the invention is in the public domain. Second, if an inventor sits on an invention and never reveals it (thus not starting the clock for the filing deadline), then it's basically a nullity, and outside of what we ought to be concerned with. It'd be no different from an author who writes a novel and never shows it to anyone.
It does not, because being quicker to file than the other guy doesn't make you the actual inventor. I'm sure you're thinking of a parallel with work made for hire authors, but I don't think that it works, particularly given the long history of caselaw that led up to that, and the concerns that exist with regard to it even today.
So you're saying that if I thought about the problem, and figured out how to build a transistor in my garage, that I would be the inventor of the transistor? Sorry, but that's just silly. Later inventors are not inventors at all.
If he did it independently, he's just as much an inventor as the first one.
But who the hell cares? The patent system is meant to encourage the creation, use, and disclosure of novel inventions. We do not need to encourage someone to invent fire, or the wheel. Given the purpose of the patent clause, it cannot possibly mean also-rans to be inventors.
Being "first" does not mean that you should magically "deserve" a monopoly at the expense of someone else
Then the correct answer is to grant an exception for independent inventors who invented prior to publication. It is not to change who gets the patent. Merely changing who gets the patent would result in the same injustice you complain of, just for person B, instead of person A. That's because there'd still only be one competing inventor who gets the patent.
However, the current system has been in effect for so long, most people can't understand that point anymore.
No, I have significant problems with the patent system (although surely not as many as a reform-minded patent lawyer, who would be more familiar with the Patent Act and the PTO). But I don't have a problem with the general utilitarian model of incentives and exclusivity. I assure you, it is the kind of thing I think about carefully.
Simply make only the first-to-file eligable for the patent. Another inventor can't patent the invention, but he can invalidate the first-to-file's patent by showing that he came up with the invention first. This would avoid any possible constitutional issues while greatly simplifying the USPTO's job in most cases.
It wouldn't simplify anything. In order to determine who was the first to invent, you'd still have to hold an interference proceeding. The only difference would be whether there'd be a patent in the end, rather than only rejecting one of the applications. I don't see how this helps at all. It probably worsens things, in fact, since the inventor who didn't file first has little incentive to even bother.
Just look at the Kelo decision: what is plainly unconstitutional to nearly everyone in the US, is somehow OK to a handful of arrogant, liberal judges.
Actually, few people seem to think it's unconstitutional, and fewer still are in any position to actually know, as thorough understandings of the Constitution are few and far between among laymen. Rather, people just don't like it. That's fine, of course; the Bill of Rights simply sets a minimum standard for the country. It's entirely possible to pass laws that are more stringent than the 5th Amendment takings clause, and most states already have.
Personally, I don't have a problem with Kelo. I think it's pretty well founded given the precedents it builds upon, and as it doesn't disturb due process or just compensation requirements, it's not even a big deal.
Ginsberg has even gone so far as to say that she will look at foreign laws and trends before deciding a case. Which, I shouldn't need to say, violates her oath to defend and uphold the Constitution of the United States.
Actually, you shouldn't be saying anything, as you're just making yourself look to be more and more of an ass with every breath. Considering foreign and historical laws is commonplace in all American courts and always has been. Many states started out as colonies of other countries, and kept the laws of the foreign country after gaining independence. This makes pre-1776 English laws (and possibly some French, Spanish, Russian, and Hawaiian laws relevant). Courts have also always been perfectly willing to look to see what their bretheren in other jurisdictions are doing. If a case is wisely decided, or merely does a good job of explaining the a law that is identical to a local law, it'll get cited. State courts routinely consider and cite laws of other states, and sometimes even countries. Federal courts do likewise, particularly where there are international concerns, such as interpreting treaties. These out of jurisdiction cases are not binding, but they may be persuasive, and that's perfectly fine and part of our tradition for centuries. Like I said, you're looking like quite an ass. And you're just getting started!
So, to summarize, if you want to see judges actually strike down unconstitutional laws, vote Republican.
I think I'll pass on that, as a rule. Not only because I think that political parties are a bad idea, but also because I hate people who try to manipulate the courts. Political affiliation shouldn't matter in picking judges and justices. Competency, legal experience, and a commitment to justice are what's important. IMO conservatives have been worse on this: J Thomas is an idiot, and CJ Roberts and J Alito show every sign of being flunkies. Whereas I don't care for Scalia at all, but I can respect him. We disagree, but he doesn't really have a dangerous political agenda in delivering an independent and apolitical branch of government into the hands of a party, much less one with control over the other branches. I also didn't like J Marshall, who should not have been on the Court, and was a liberal. But J. Douglas was great.
Which would include Social Security, Medicare, welfare
How are they unconstitutional? Congress can spend federal money however it likes, so long as it does so 'for the general welfare.' All of those programs qualify, as it helps everyone to have a safety net (even if some of us don't need it), and helps us avoid severe class differences that would be harmful to the American people (as has happened before).
abortion (yes, people, even abortion),
So you're saying that you want the Court to overturn the laws that Congress and the states have passed regarding abortion? Well, I don't particularly disagree with you. I also support abortion rights.
massive "transportation" bills
Spending clause again.
For those who don't know, it says that any government functions not specifically assigned to the federal government, and left up to the state
Saying they were losing in deliberations
They were going to lose until the decision was significantly reined in. If the Court was simply pro-Sony in that case, it wouldn't've mattered. I'm sorry, but you're completely wrong about the judicial system. You've let your cynicism blind you.
what about the wal-mart class action suit.
I'm not familiar with the case, so you'd really need to provide a cite.
Of course, this is unconstitutional. The Constitution requires that patents only be granted to an inventor. An inventor is the first person to develop a discovery or technology. The second guy to do so, even if he does so independently, is ultimately just an also-ran. If someone who had been unaware of them spontaneously invented the wheel, why the hell would he deserve anything? Why would it matter whether he did so thousands of years after it was invented by the actual inventor, or a day?
If other countries want to do that, then that's up to them. I'm not going to tell them what to do. But not only is it a bad idea here, it is one that would be entirely unlawful. It's only in here due to a combination of laziness on the part of the PTO, since they could avoid having to run interference proceedings, and greed on the part of large, corporate inventors, since they can act more quickly than smaller inventors.
I haven't had a chance to look at the latest bill, but I doubt there's much good in it, if anything, if this is any indication.
there is a difference between interpreting existing laws, and legislating from the bench
Yes, but both of them are part of our common law traditions. Courts created pretty much the whole of contract law, tort law, property law, etc. If Congress had a problem with the idea of secondary liability in copyright -- and n.b. that the idea of secondary liability is a common one throughout the law -- then they'd pass a law against it, which would bar the courts from having it there. But not only have they not done so, they've passed laws supporting it. And this is not particularly different from how the courts created exceptions like first sale or fair use.
ok.. here's an example.
betamax: legal** defendant - sony, a large corporation
p2p: illegal** defendant - millions of american citizens, not a large corporation
The problem is that in Sony, the plaintiffs were the movie studios, also large corporations. Also, Sony was a 6-3 decision against Sony while the Court was deliberating. It only changed into the 5-4 in Sony's favor when a compromise was reached that brought in JJ Brennan and O'Connor. You're going to need a better example.
really? are you sure? have you read the souter eminent domain ruling recently?
I imagine that you're talking about the Kelo case. Honestly, I agree with it. The state still has to pay fair compensation (and can be sued for more money if the person losing their property thinks that it's not enough) and it is ultimately using it for the public good, albiet in an attenuated fashion. The states remain free to impose more stringent limits upon themselves in their own laws or constitutions, and most have. The opinion did not come out of nowhere; it's just part of a long line of similar rulings dating back into the 19th century. If you didn't know anything about eminent domain, it might shock you, but if you do, it's not all that surprising. If I had been on the Court, I would have ruled with the majority, and I am not corrupt.
As for "judicial activism" the very notion is absurd. It doesn't exist. Courts interpret laws every day, and have done so in our legal tradition for nearly a thousand years. They can't not do it; it's at the core of their purpose. Just because you disagree with their interpretation doesn't mean that they are wrong, or that both interpretations aren't valid. You need to calm down.
i've seen issues of nearly mirrored similarity ruled in two different directions depending on weather the defendent or plaintiff was the corporate entity
And if you'd provide examples, you'd support your argument.
Your Napster example falls flat as one only needs to know that unlike Limewire, Napster keep a list of files being shared on a central server. That's an important distinction. Limewire keeps no such centralized list and should not be held accountable for what other people do with its product any more that a pistol manufacturer should be held accountable every time someone uses one of their guns to rob a bank or commit murder.
I'm sorry, but you're wrong. First, LimeWire is similar, in its decentralized nature, to Grokster. Yet Grokster also lost its court case. Mere decentralization isn't enough protection. Second, the Grokster case says that the technology providers can be held liable for what other people do, not on the mere basis of the technology's capabilities, but on the basis that the provider may have encouraged the illegal behavior of the other people. Borrowing from your gun example, just making a gun isn't enough to cause liability. But advertising the gun as being well-suited to murders, and encouraging illegal gun violence on the part of the customers, would be.
I strongly recommend that you actually read the Grokster opinion from the Supreme Court. you don't have to agree with it, but it's important to know what the law is currently.
Blocking files or searches just isn't going to be possible.
That's what Grokster and Napster said, too. Look what happened to them.
But Limewire has a pretty clear defense
The Grokster case teaches us that that argument is only a defense to a charge of infringement based solely upon the capability of the technology at question to facilitate infringement. It is not a defense when, like in Grokster, the defendant is encouraging infringement when you look at all of its words and deeds.
Yes I fully agree with you on this, theyre screwed, but not because theyre actually breaking the law in the slightest.
I disagree. I think they probably are breaking the law. This is why, if we like things like LimeWire, that we ought to focus on changing the law.
They will be ruled against because the bought supreme court made it entirely subjective, allowing their corporate schills to basically pick and choose what technology is allowed to exist without real public debate or due legislative process. Talk about activist judges..
No, I disagree. The Court isn't bought or being activist. This is a common law issue anyway, which means it falls under the purview of the courts. If we don't like it, we can always legislate, thus overriding them. The real problem is with Congress, not the courts.
do you really think file sharing can be stopped?
I don't think it can be, or should be. I'm simply explaining what the law is currently. I never said I liked it. Would you prefer to be misinformed or uninformed, living in a fantasy world?
No, that was that so many people had stock that they had to register. They were already under the authority of the SEC, however. Pretty much everyone is, right from the get-go.
The real question is, will they be able to prove LimeWire *encouraged* unlawful infringement, beyond simply not developing filtering mechanisms.
I think they will.
they're hoping to expand the previous ruling such that not actively preventing infringement will qualify as contributory infringement
I don't think that's likely.
Here's to hoping they fail, otherwise the door will be open to sue practically anyone (including ISPs and other network operators).
ISPs et al are already shielded by 17 USC 512. These cases don't really matter to them. The real question is whether LimeWire can manage to get into this safe harbor. Napster tried and failed, but I think it's still worth a shot, in the right jurisdiction.
I get the logic, but there's a fundamental flaw.
I agree. Still, that's their plan.
It's a factor. Take it seriously.
From the Grokster case:
It sounds as though RIAA is using the new inducement theory of indirect infringement. The rule there is:
In applying that rule, the Court looked at everything from Grokster's business plan, advertisements, technology, and even their name. A little prompt might be a factor in LimeWire's favor, but that fig leaf isn't going to save them.