I don't know where Gates goes, but I do remember that when I lived in the area, my barber claimed to be the one who cut Ballmer's hair. I didn't think that was really something to be all that proud of, but whatever.
(for the curious, it was that place on Bel-Red Rd., right by the Pagliacci's, and a couple blocks from Crossroads)
A question I've always wondered about is how is a downloader supposed to know something is copyrighted, and is not legal to download?
Well, no one cares. Modern copyright law is weighted very far in the favor of copyright holders, particularly when computers are involved. So if you download it unlawfully, it's no excuse that you didn't know, or even that you had no reason to know. The best you can hope for in that situation is that you will only have to pay the bare minimum of $200 per work infringed. Pretty fair, right? Yeah.
Ideally there should be notice, but it would only be attached to the work, not a link, and in any case the absence of the notice doesn't get you off the hook either, since the damn Europeans (and our own copyright lobby) have been in a race to make the law as bad as possible.
It's probably something to ponder when considering the sweeping reforms we need for copyright to be reasonable once more.
No sweat. Basically, it's what you use when you use analog cassette tapes, Audio CDR (the ones marketed as such, not the data CDRs people normally use, though they're functionally identical AFAIK), Minidisc, DAT, etc.
And in any case, it was basically written by RIAA, and they're not going to give themselves the shaft.
A jury can decide on the matter of whether or not there is liability. And if there is liability, they get to decide on the matter of how much to award. But if they are awarding damages, they only have a choice within a window. This window runs between $750 and $30,000 per work infringed. It can go up to $150,000 per work infringed if they find that the infringer acted intentionally. It can go down to $200 per work infringed if they find that the infringer didn't know and had no reason to know, that they were infringing. (Obviously the range could only be $200 - $30,000 or $750 to $150,000, since the findings for raising or lowering the range are mutually exclusive)
A jury cannot go outside of this range. If they try, all that will happen is that they will be scolded by the judge, and the case will be tried again with a new jury. (This is because additur, which is when a judge increases an award because the jury decided too low, is not allowed in federal court)
So you'd just end up wasting everyone's time and money, without otherwise accomplishing anything.
Ah, I haven't seen anyone misread 1008 in the usual way for a little while. It's refreshing. Wrong, but refreshing.
The key to 1008 in this context is that there has to be the use of a digital audio recording device or digital audio recording medium. The question is, what are those things? Well, we have some important definitions in 1001. Usually the sort of person who cites 1008 will always forget to have checked 1001, to make sure that 1008 actually says what it appears on first glance to say.
(1) A "digital audio copied recording" is a reproduction in a digital recording format of a digital musical recording, whether that reproduction is made directly from another digital musical recording or indirectly from a transmission.
(3) A "digital audio recording device" is any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use, except for-- (A) professional model products, and (B) dictation machines, answering machines, and other audio recording equipment that is designed and marketed primarily for the creation of sound recordings resulting from the fixation of nonmusical sounds.
(4)(A) A "digital audio recording medium" is any material object in a form commonly distributed for use by individuals, that is primarily marketed or most commonly used by consumers for the purpose of making digital audio copied recordings by use of a digital audio recording device. (B) Such term does not include any material object-- (i) that embodies a sound recording at the time it is first distributed by the importer or manufacturer; or (ii) that is primarily marketed and most commonly used by consumers either for the purpose of making copies of motion pictures or other audiovisual works or for the purpose of making copies of nonmusical literary works, including computer programs or data bases.
(5)(A) A "digital musical recording" is a material object-- (i) in which are fixed, in a digital recording format, only sounds, and material, statements, or instructions incidental to those fixed sounds, if any, and (ii) from which the sounds and material can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. (B) A "digital musical recording" does not include a material object-- (i) in which the fixed sounds consist entirely of spoken word recordings, or (ii) in which one or more computer programs are fixed, except that a digital musical recording may contain statements or instructions constituting the fixed sounds and incidental material, and statements or instructions to be used directly or indirectly in order to bring about the perception, reproduction, or communication of the fixed sounds and incidental material. (C) For purposes of this paragraph-- (i) a "spoken word recording" is a sound recording in which are fixed only a series of spoken words, except that the spoken words may be accompanied by incidental musical or other sounds, and (ii) the term "incidental" means related to and relatively minor by comparison.
So, in order for a computer to be a digitial audio recording device, it must have a digital recording function which is designed or marketed for the primary purpose of making digital audio copied recordings for private use.
This is not the case, however. Ordinary personal computers are general purpose devices; their digital recording functions are the same, whether the data being recorded is text, music, speech, pictures, etc. Thus, it doesn't qualify for 1008.
Similarly, in order for a hard drive to be a digital audio recording medium, it must be primarily marketed or most commonly used by consumers for the purpose of making digital audio copied recordings by use of a digital a
Well, the purpose of patents is to promote the progress of the useful arts. There are several components to this: invention; publication; bringing the invention to market; and no or minimal encumberances on the public with regard to the invention, in either scope or term length.
If there were no patents, there would be some invention and publication, somewhat more bringing to market, and no encumberances at all. The idea behind patents is to accept some temporary encumberances in order to get much more invention, publication, and bringing to market. But it is only sensible to have patents when they provide more of a public benefit (as measured by those four elements) than the public harm (as measured by reduction of those elements, particularly the last one) than they incur.
This is why patents for a few years could be sensible, but patents that lasted for centuries would not be. The latter sort would yield a net detriment, not a net benefit.
I think we should not grant business method patents. The reason is that I think there are already lots of incentives for invention and bringing to market, and that due to the nature of the field, publication tends to happen anyway (e.g. the method used by Netflix is pretty apparent just by looking at them, as opposed to the formula for a drug, which could be really complicated and hard to reverse engineer). With such great incentives already present, I don't think that adding patents provides much additional incentive. It does, however, incur significant costs.
I think that the result is that patents are actually retarding the progress of the useful arts in the business field. If things change in the future, and these natural incentives aren't there anymore, or patents could offer more of a benefit in this field, then I'd have no problem with them. But right now, I think they're doing more harm than good. Novelty and nonobviousness are not good enough reasons on their own for having patents.
Actually, that's just one symbol. There are a ton of organizations that issue hechsherim. And people will find that some are more reliable than others. There are some pages here and here that list a bunch of them. The one for Calgary Kosher is great.
No. Recipes are a process, and thus not copyrightable under 17 USC 102(b). A specific description of a recipe might be copyrightable, but would 1) not prevent people from writing their own descriptions, and 2) probably would not be copyrightable the more straightforward it was, due to the merger doctrine. Merger is what happens when there is only one, or only a small number of reasonable ways to express an idea. Since a copyright on the expression would effectively keep others from using the uncopyrightable idea, the idea and expression merge, and both are uncopyrightable.
As for the earlier poster, I don't know what he's on about. I've never heard anyone say that recipes are not patentable. The trick is just that novel, nonobvious recipes are few and far between, and I doubt most inventive chefs bother trying to get a patent while they can. Come up with the right recipe and act swiftly enough, and you could get a patent on it and possibly even the finished product.
As the Napster case, and many other cases have held, downloaders infringe on the reproduction right. There is a question as to who is responsible for downloading, but the Marobie-FL case puts the responsibility on the person who caused the downloading to occur; generally, this is the downloader. In the rare case that someone hacked your computer and made it download files, it would be the fault of that person. But if you're just using ordinary P2P software, it's your own fault.
Uploaders, OTOH, are liable for infringing the distribution right, by making the files available for downloading.
Meh. The greater problem is with the clients. The lawyers are just doing what they're directed to do, and it's not as though the organizations shouldn't be able to get representation.
(Besides, from what I understand, there are relatively few lawyers involved anyway. It's regular employees or contractors who find infringers and offer canned settlements. It wouldn't usually get bumped up to a lawyer unless someone wouldn't settle.)
Well, in this case RIAA says they've got evidence of her infringing the copyrights of 272 different songs. If the RIAA opts for statutory damages (seems likely) they have a potential ceiling of $40.8 million. But it's more likely they'd get something in the range of $204,000 to $8.160 million. It is seems unlikely that the award would be any lower than the $204k figure, but the absolute minimum it could possibly be if RIAA won a court case against her would be $54,400. The law does not allow for a lower amount. And I seriously doubt that she could make the case for such a low number. The $204k amount is probably as low as the court will be able to go.
So given that RIAA is willing to settle for a paltry $3,750, it is strongly in her own best interests to settle unless she didn't infringe at all.
Naturally, if she hasn't got that much, then it doesn't matter how big the award is, as far as the RIAA is concerned. But it would hang over her, forcing her to try to discharge it in bankruptcy, or trying to pay it off for many years to come.
Actually, in the US, it is often both. 17 USC 501 covers civil infringement, while 506 covers criminal infringement. Some infringement has been criminal since the late 19th century, so this isn't all that new.
Obscentity can also mean speech deemed to be against community standards.
No. In a legal sense, obscenity has a very specific meaning. In order for speech to be obscene, it must:
1) When taken as a whole, applying community standards, appears to appeal to prurient interests; 2) Depict or describe in a patently offensive way, sexual conduct; and 3) When taken as a whole, lack serious literary, artistic, political, or scientific value.
That 'and' is important, as all three conditions have to be met.
This might include using swear words at a circus with lots of young children around,
No, that would ordinarily not be obscene. Saying 'fuck this' doesn't really have anything to do with sex. It's just an expletive. The traditional case on this is the Cohen case, also known as the Fuck the Draft case. As the Court said, to be obscene, the material has to be erotic. The slogan Cohen had printed on his jacket simply wasn't. The fact that it might be offensive to kids wasn't enough to justify censorship; when kids are out in public, the free speech of adults takes precedence over their tender sensibilities.
However, I believe the same test is applied to incitement or fighting words
No, not the same. And I believe there are slight differences between incitement and fighting words as well.
The words must present a clear and imminent (present) danger.
No, that's an outdated standard. It was replaced by Brandenburg v. Ohio a long time ago.
This is a Federal Court judge applying established Supreme Court jurisprudence to what is categorically an obscenity issue. I see no judicial activism here.
I would be curious as to why you think that obscenity caselaw was used, when the definition of obscenity requires that sex be involved, and this law is about violence.
The field of economics believes that people respond to incentives.
This is my chief argument against software and business method patents. In these fields, which are just incredibly dynamic, I don't think that the patents actually do provide an incentive. Inventors would tend to create the same inventions anyway. A patent doesn't increase the value of an invention, but it does concentrate what value is there. I think that the unconcentrated value of inventions in these fields is currently high enough to provide enough of an incentive for invention, publication, and bringing to market. More incentive would be superfluous, and come at a significant cost. These costs should be avoided where they don't actually yield a commensurately greater benefit for the public.
In time, perhaps, these fields will slow down and the added incentives will become useful. For the time being though, I don't think that the pace of inventiveness in either field would slow down one bit if patents were unavailable.
People have an "I created this, it's mine" mentality.
Yeah, that's an obstacle that really needs to be overcome. Patents and copyrights are utilitarian. The issue is what implementation, if any, yields the greatest public benefit. In patents, the benefit can be broken down into parts: encouraging invention, encouraging publication, encouraging coming to market, having the most minimal encumberance on the public possible. Generally you end up trading the last two in order to encourage the first three.
First of all, how would I know that the file I download is protected under copyright law?
Who cares? Copyright infringement is a strict liability statute. It doesn't matter what you know, or whether you acted in good faith, or anything other than that you perform the act.
The law says it's duty of copyright holder to notify people about their rights.
No it doesn't. The most relevant section would be 405. It's not terribly relevant anymore, and of course the copies authorized usually do bear notice; the copies usually available for download are not authorized ones.
When you buy book in shop - how would you know the book isn't counterfeit/the copy is legal???
Why would you care? Mere possession of an unlawfully made copy isn't unlawful. But making one, which occurs during downloading, is.
Computer just to function properly makes hundreds copies of information every second. What was presumed to be "copy" in copyright law - isn't even considered to be copy in computerzied world.
Sadly, there's a whole line of cases, the chief of which is MAI v. Peak, which state that the copies made by a computer in RAM, or cache, or swap files, or wherever, are copies for the purposes of copyright law, and that making them can be infringing.
P.S. Also, you must remember, that European legal system isn't precedent-based - judges often refer to such thing most americans have forgotten - common sense.
I've never been able to figure out how the Europeans manage without a common law system, but it's really not relevant. Our courts generally do a good job, but in copyright matters their deference to Congress and the lousy laws that get enacted is what's the main problem.
All of the RIAA cases I've seen against P2P users were about downloading song files from them: RIAA was obtaining files from P2P users - iow P2P users were uploaders. Not reverse.
There are two reasons you don't often see downloading cases. First, downloaders are tough to find. That doesn't make what they do legal, however. Second, it's inefficient to sue them. In a case where you want to deter behavior, you generally go for the head of the snake, as it were. Shutting down entire networks or at least popular uploaders will tend to shut down people downstream from them. By analogy, if you destroy coca fields, the cocaine manufacturers, the distribution chain, and the users, will all be out of luck for a lack of raw materials and the product that's made from it. Whereas taking out a single user doesn't really shut down anyone upstream.
Grokster/Napster/etc - are all absolutely different cases.
At the moment there is a lot of grey area with copyright and the internet (IANAL) - which is why 'legal' music sites like allofmp3.com have disclaimers regarding local laws rather than concrete advice. In my own local jurisdiction the law appears to be clear about importing copyrighted material (and it's quite similiar in most other places) - i.e it's ok for personal/domestic use.
Not knowing where you are, I can't speak as to your local laws. In the US however, it's illegal to use allofmp3. This is because US laws control the downloader, rather than Russian laws, and US laws prohibit unauthorized downloading. Importation, as it is defined in the US, is a red herring; it involves transporting tangible objects over the border. Downloading information doesn't qualify. This isn't a grey area either; it's very clear, if you don't delude yourself.
Of course, the main reason, it seems to me, to not use that site is simply because if you're going to pirate, you may as well not pay for it, much less paying rather sketchy Russians.
Well, even for a compilation of facts, the compilation has to be creative in terms of the selection and arrangement of the facts so compiled. Not all compilations will be. The white pages, for example, are uncreative in terms of the selection of facts (name, address, phone number) and organization (alphabetical by last name).
So one would imagine that the more inclusive and logically ordered your research is, the less copyrightable it's prone to be. Google's database is probably not copyrightable due to the lack of discrimination in what's in there (as much as they can fit in) and how it's arranged (however it's most efficient for the engine to search through).
As copyright law concerned, it's uploaders who are infriging. Uploading is distribution.
It is correct that uploaders infringe on the distribution right.
Case for downloader is much simpler: downloader has acquired something for personal use. As long as file in question isn't used for anything what's prohibited by copyright law - downloader is clear. "Listening to mp3" is not there. "Distributing" and "profiting" is there.
Not quite. The main exclusive rights are listed at 17 USC 106. Downloaders infringe on the reproduction right, because when they download, they create a new copy.
This is pretty settled law. You can see it in cases such as Napster, Grokster, and my favorite (because it's so clear, not because I like it) Intellectual Reserve v. Utah Lighthouse Ministry. As for who is responsible for the download, basically it's the person that initiated it (see e.g. Marobie-FL v. NAFED). For ordinary downloading of mp3s or whatnot, that would be the downloader. If your machine was taken over by a hacker, then it wouldn't be your fault, though it could be tough for you to prove.
Well, there's a number of naturally formed marble monuments in the US. As our ability to move such large pieces of rock improved, we've dug up more of them. I suppose it is a little odd that things like the Lincoln Memorial just happened to be sitting in the ground waiting to be dug up, but stranger things have happened.
This is why we have a number of different intentional torts, such as: intentional infliction of emotional distress (or assault, depending on the circumstances involved); false imprisonment (which, under the right circumstances, doesn't require harm or even the threat thereof); and battery, which covers physical harm.
Having done many "works for higher" in my life I am very familiar with the topic.
It shows.
First, it's "works for hire." You seem to have gotten caught up on a homonym.
I have already clearly explained that the "artist" that work for blizzard, though they created the "art" have no legal right to it because they have an agreement with Blizzard transfering the copyright.
Second, while this greatly depends on how Blizzard is organized internally, and how they arrange for people to work on their projects, an artist that is their employee does not transfer copyrights to Blizzard. Rather, as the employer, in a work for hire scenario, Blizzard is the artist, and their employee is just the guy who carries out what they want. It's similar to how a director might be the author of a movie, but he has some other people pointing cameras at things under his instruction.
It's a good thing you're so familiar with the topic, eh?
Basically it makes the assumption that the unauthorized WoW guide does not decrease the value of Blizzards intelectual property, and even goes as far as to say it increases it. This is false speculation which does not take into account Blizzards licensing fees on authorized guides.
But do they have a right to exclusively license guides? Remember, game rules can only be protected with a patent, provided they satisfy the requirements for patentability. Otherwise they're public domain. A description of them, or software that implements them, might be copyrightable. And the art associated with it might be too. And the name might be trademarkable. But the rules are a pain in the ass to protect. I only know of one game rule patent, in fact.
The guide appears to be a description of how to manipulate the rules. It's not particularly different than a book that tells you the winning strategy for Uno, or chess, or whatever. The fact that the creator of the game can write such a book doesn't mean much if everyone else has the right to do so as well. Their loss of value at the hands of fair and lawful competition is just tough luck.
Slashdot Mirror
I don't know where Gates goes, but I do remember that when I lived in the area, my barber claimed to be the one who cut Ballmer's hair. I didn't think that was really something to be all that proud of, but whatever.
(for the curious, it was that place on Bel-Red Rd., right by the Pagliacci's, and a couple blocks from Crossroads)
A question I've always wondered about is how is a downloader supposed to know something is copyrighted, and is not legal to download?
Well, no one cares. Modern copyright law is weighted very far in the favor of copyright holders, particularly when computers are involved. So if you download it unlawfully, it's no excuse that you didn't know, or even that you had no reason to know. The best you can hope for in that situation is that you will only have to pay the bare minimum of $200 per work infringed. Pretty fair, right? Yeah.
Ideally there should be notice, but it would only be attached to the work, not a link, and in any case the absence of the notice doesn't get you off the hook either, since the damn Europeans (and our own copyright lobby) have been in a race to make the law as bad as possible.
It's probably something to ponder when considering the sweeping reforms we need for copyright to be reasonable once more.
No sweat. Basically, it's what you use when you use analog cassette tapes, Audio CDR (the ones marketed as such, not the data CDRs people normally use, though they're functionally identical AFAIK), Minidisc, DAT, etc.
And in any case, it was basically written by RIAA, and they're not going to give themselves the shaft.
That's nice, but it would not be your choice.
A jury can decide on the matter of whether or not there is liability. And if there is liability, they get to decide on the matter of how much to award. But if they are awarding damages, they only have a choice within a window. This window runs between $750 and $30,000 per work infringed. It can go up to $150,000 per work infringed if they find that the infringer acted intentionally. It can go down to $200 per work infringed if they find that the infringer didn't know and had no reason to know, that they were infringing. (Obviously the range could only be $200 - $30,000 or $750 to $150,000, since the findings for raising or lowering the range are mutually exclusive)
A jury cannot go outside of this range. If they try, all that will happen is that they will be scolded by the judge, and the case will be tried again with a new jury. (This is because additur, which is when a judge increases an award because the jury decided too low, is not allowed in federal court)
So you'd just end up wasting everyone's time and money, without otherwise accomplishing anything.
Some sample jury instructions can be found here.
Also, your math is wrong. You left out twelve cents.
The key to 1008 in this context is that there has to be the use of a digital audio recording device or digital audio recording medium. The question is, what are those things? Well, we have some important definitions in 1001. Usually the sort of person who cites 1008 will always forget to have checked 1001, to make sure that 1008 actually says what it appears on first glance to say.
So, in order for a computer to be a digitial audio recording device, it must have a digital recording function which is designed or marketed for the primary purpose of making digital audio copied recordings for private use.
This is not the case, however. Ordinary personal computers are general purpose devices; their digital recording functions are the same, whether the data being recorded is text, music, speech, pictures, etc. Thus, it doesn't qualify for 1008.
Similarly, in order for a hard drive to be a digital audio recording medium, it must be primarily marketed or most commonly used by consumers for the purpose of making digital audio copied recordings by use of a digital a
Well, the purpose of patents is to promote the progress of the useful arts. There are several components to this: invention; publication; bringing the invention to market; and no or minimal encumberances on the public with regard to the invention, in either scope or term length.
If there were no patents, there would be some invention and publication, somewhat more bringing to market, and no encumberances at all. The idea behind patents is to accept some temporary encumberances in order to get much more invention, publication, and bringing to market. But it is only sensible to have patents when they provide more of a public benefit (as measured by those four elements) than the public harm (as measured by reduction of those elements, particularly the last one) than they incur.
This is why patents for a few years could be sensible, but patents that lasted for centuries would not be. The latter sort would yield a net detriment, not a net benefit.
I think we should not grant business method patents. The reason is that I think there are already lots of incentives for invention and bringing to market, and that due to the nature of the field, publication tends to happen anyway (e.g. the method used by Netflix is pretty apparent just by looking at them, as opposed to the formula for a drug, which could be really complicated and hard to reverse engineer). With such great incentives already present, I don't think that adding patents provides much additional incentive. It does, however, incur significant costs.
I think that the result is that patents are actually retarding the progress of the useful arts in the business field. If things change in the future, and these natural incentives aren't there anymore, or patents could offer more of a benefit in this field, then I'd have no problem with them. But right now, I think they're doing more harm than good. Novelty and nonobviousness are not good enough reasons on their own for having patents.
Actually, that's just one symbol. There are a ton of organizations that issue hechsherim. And people will find that some are more reliable than others. There are some pages here and here that list a bunch of them. The one for Calgary Kosher is great.
No. Recipes are a process, and thus not copyrightable under 17 USC 102(b). A specific description of a recipe might be copyrightable, but would 1) not prevent people from writing their own descriptions, and 2) probably would not be copyrightable the more straightforward it was, due to the merger doctrine. Merger is what happens when there is only one, or only a small number of reasonable ways to express an idea. Since a copyright on the expression would effectively keep others from using the uncopyrightable idea, the idea and expression merge, and both are uncopyrightable.
As for the earlier poster, I don't know what he's on about. I've never heard anyone say that recipes are not patentable. The trick is just that novel, nonobvious recipes are few and far between, and I doubt most inventive chefs bother trying to get a patent while they can. Come up with the right recipe and act swiftly enough, and you could get a patent on it and possibly even the finished product.
That is generally incorrect.
As the Napster case, and many other cases have held, downloaders infringe on the reproduction right. There is a question as to who is responsible for downloading, but the Marobie-FL case puts the responsibility on the person who caused the downloading to occur; generally, this is the downloader. In the rare case that someone hacked your computer and made it download files, it would be the fault of that person. But if you're just using ordinary P2P software, it's your own fault.
Uploaders, OTOH, are liable for infringing the distribution right, by making the files available for downloading.
Meh. The greater problem is with the clients. The lawyers are just doing what they're directed to do, and it's not as though the organizations shouldn't be able to get representation.
(Besides, from what I understand, there are relatively few lawyers involved anyway. It's regular employees or contractors who find infringers and offer canned settlements. It wouldn't usually get bumped up to a lawyer unless someone wouldn't settle.)
Well, in this case RIAA says they've got evidence of her infringing the copyrights of 272 different songs. If the RIAA opts for statutory damages (seems likely) they have a potential ceiling of $40.8 million. But it's more likely they'd get something in the range of $204,000 to $8.160 million. It is seems unlikely that the award would be any lower than the $204k figure, but the absolute minimum it could possibly be if RIAA won a court case against her would be $54,400. The law does not allow for a lower amount. And I seriously doubt that she could make the case for such a low number. The $204k amount is probably as low as the court will be able to go.
So given that RIAA is willing to settle for a paltry $3,750, it is strongly in her own best interests to settle unless she didn't infringe at all.
Naturally, if she hasn't got that much, then it doesn't matter how big the award is, as far as the RIAA is concerned. But it would hang over her, forcing her to try to discharge it in bankruptcy, or trying to pay it off for many years to come.
FYI, downloading is reproduction, so don't think that criminal penalties are unavailable for downloading.
#include
int main( void )
{
printf("Goodbye, world!");
}
Actually, in the US, it is often both. 17 USC 501 covers civil infringement, while 506 covers criminal infringement. Some infringement has been criminal since the late 19th century, so this isn't all that new.
Obscentity can also mean speech deemed to be against community standards.
No. In a legal sense, obscenity has a very specific meaning. In order for speech to be obscene, it must:
1) When taken as a whole, applying community standards, appears to appeal to prurient interests;
2) Depict or describe in a patently offensive way, sexual conduct; and
3) When taken as a whole, lack serious literary, artistic, political, or scientific value.
That 'and' is important, as all three conditions have to be met.
This might include using swear words at a circus with lots of young children around,
No, that would ordinarily not be obscene. Saying 'fuck this' doesn't really have anything to do with sex. It's just an expletive. The traditional case on this is the Cohen case, also known as the Fuck the Draft case. As the Court said, to be obscene, the material has to be erotic. The slogan Cohen had printed on his jacket simply wasn't. The fact that it might be offensive to kids wasn't enough to justify censorship; when kids are out in public, the free speech of adults takes precedence over their tender sensibilities.
However, I believe the same test is applied to incitement or fighting words
No, not the same. And I believe there are slight differences between incitement and fighting words as well.
The words must present a clear and imminent (present) danger.
No, that's an outdated standard. It was replaced by Brandenburg v. Ohio a long time ago.
This is a Federal Court judge applying established Supreme Court jurisprudence to what is categorically an obscenity issue. I see no judicial activism here.
I would be curious as to why you think that obscenity caselaw was used, when the definition of obscenity requires that sex be involved, and this law is about violence.
The field of economics believes that people respond to incentives.
This is my chief argument against software and business method patents. In these fields, which are just incredibly dynamic, I don't think that the patents actually do provide an incentive. Inventors would tend to create the same inventions anyway. A patent doesn't increase the value of an invention, but it does concentrate what value is there. I think that the unconcentrated value of inventions in these fields is currently high enough to provide enough of an incentive for invention, publication, and bringing to market. More incentive would be superfluous, and come at a significant cost. These costs should be avoided where they don't actually yield a commensurately greater benefit for the public.
In time, perhaps, these fields will slow down and the added incentives will become useful. For the time being though, I don't think that the pace of inventiveness in either field would slow down one bit if patents were unavailable.
People have an "I created this, it's mine" mentality.
Yeah, that's an obstacle that really needs to be overcome. Patents and copyrights are utilitarian. The issue is what implementation, if any, yields the greatest public benefit. In patents, the benefit can be broken down into parts: encouraging invention, encouraging publication, encouraging coming to market, having the most minimal encumberance on the public possible. Generally you end up trading the last two in order to encourage the first three.
First of all, how would I know that the file I download is protected under copyright law?
Who cares? Copyright infringement is a strict liability statute. It doesn't matter what you know, or whether you acted in good faith, or anything other than that you perform the act.
The law says it's duty of copyright holder to notify people about their rights.
No it doesn't. The most relevant section would be 405. It's not terribly relevant anymore, and of course the copies authorized usually do bear notice; the copies usually available for download are not authorized ones.
When you buy book in shop - how would you know the book isn't counterfeit/the copy is legal???
Why would you care? Mere possession of an unlawfully made copy isn't unlawful. But making one, which occurs during downloading, is.
Computer just to function properly makes hundreds copies of information every second. What was presumed to be "copy" in copyright law - isn't even considered to be copy in computerzied world.
Sadly, there's a whole line of cases, the chief of which is MAI v. Peak, which state that the copies made by a computer in RAM, or cache, or swap files, or wherever, are copies for the purposes of copyright law, and that making them can be infringing.
P.S. Also, you must remember, that European legal system isn't precedent-based - judges often refer to such thing most americans have forgotten - common sense.
I've never been able to figure out how the Europeans manage without a common law system, but it's really not relevant. Our courts generally do a good job, but in copyright matters their deference to Congress and the lousy laws that get enacted is what's the main problem.
All of the RIAA cases I've seen against P2P users were about downloading song files from them: RIAA was obtaining files from P2P users - iow P2P users were uploaders. Not reverse.
There are two reasons you don't often see downloading cases. First, downloaders are tough to find. That doesn't make what they do legal, however. Second, it's inefficient to sue them. In a case where you want to deter behavior, you generally go for the head of the snake, as it were. Shutting down entire networks or at least popular uploaders will tend to shut down people downstream from them. By analogy, if you destroy coca fields, the cocaine manufacturers, the distribution chain, and the users, will all be out of luck for a lack of raw materials and the product that's made from it. Whereas taking out a single user doesn't really shut down anyone upstream.
Grokster/Napster/etc - are all absolutely different cases.
At the moment there is a lot of grey area with copyright and the internet (IANAL) - which is why 'legal' music sites like allofmp3.com have disclaimers regarding local laws rather than concrete advice. In my own local jurisdiction the law appears to be clear about importing copyrighted material (and it's quite similiar in most other places) - i.e it's ok for personal/domestic use.
Not knowing where you are, I can't speak as to your local laws. In the US however, it's illegal to use allofmp3. This is because US laws control the downloader, rather than Russian laws, and US laws prohibit unauthorized downloading. Importation, as it is defined in the US, is a red herring; it involves transporting tangible objects over the border. Downloading information doesn't qualify. This isn't a grey area either; it's very clear, if you don't delude yourself.
Of course, the main reason, it seems to me, to not use that site is simply because if you're going to pirate, you may as well not pay for it, much less paying rather sketchy Russians.
Well, even for a compilation of facts, the compilation has to be creative in terms of the selection and arrangement of the facts so compiled. Not all compilations will be. The white pages, for example, are uncreative in terms of the selection of facts (name, address, phone number) and organization (alphabetical by last name).
So one would imagine that the more inclusive and logically ordered your research is, the less copyrightable it's prone to be. Google's database is probably not copyrightable due to the lack of discrimination in what's in there (as much as they can fit in) and how it's arranged (however it's most efficient for the engine to search through).
As copyright law concerned, it's uploaders who are infriging. Uploading is distribution.
It is correct that uploaders infringe on the distribution right.
Case for downloader is much simpler: downloader has acquired something for personal use. As long as file in question isn't used for anything what's prohibited by copyright law - downloader is clear. "Listening to mp3" is not there. "Distributing" and "profiting" is there.
Not quite. The main exclusive rights are listed at 17 USC 106. Downloaders infringe on the reproduction right, because when they download, they create a new copy.
This is pretty settled law. You can see it in cases such as Napster, Grokster, and my favorite (because it's so clear, not because I like it) Intellectual Reserve v. Utah Lighthouse Ministry. As for who is responsible for the download, basically it's the person that initiated it (see e.g. Marobie-FL v. NAFED). For ordinary downloading of mp3s or whatnot, that would be the downloader. If your machine was taken over by a hacker, then it wouldn't be your fault, though it could be tough for you to prove.
Well, there's a number of naturally formed marble monuments in the US. As our ability to move such large pieces of rock improved, we've dug up more of them. I suppose it is a little odd that things like the Lincoln Memorial just happened to be sitting in the ground waiting to be dug up, but stranger things have happened.
Yes, we all know that using LaTeX drives even real men to suicide.
Mental trauma IS physical harm
No, it's not.
kidnapping someone by definition is harm
No, it's not.
This is why we have a number of different intentional torts, such as: intentional infliction of emotional distress (or assault, depending on the circumstances involved); false imprisonment (which, under the right circumstances, doesn't require harm or even the threat thereof); and battery, which covers physical harm.
Perhaps you'd like to read up on the subject?
Having done many "works for higher" in my life I am very familiar with the topic.
It shows.
First, it's "works for hire." You seem to have gotten caught up on a homonym.
I have already clearly explained that the "artist" that work for blizzard, though they created the "art" have no legal right to it because they have an agreement with Blizzard transfering the copyright.
Second, while this greatly depends on how Blizzard is organized internally, and how they arrange for people to work on their projects, an artist that is their employee does not transfer copyrights to Blizzard. Rather, as the employer, in a work for hire scenario, Blizzard is the artist, and their employee is just the guy who carries out what they want. It's similar to how a director might be the author of a movie, but he has some other people pointing cameras at things under his instruction.
It's a good thing you're so familiar with the topic, eh?
Basically it makes the assumption that the unauthorized WoW guide does not decrease the value of Blizzards intelectual property, and even goes as far as to say it increases it. This is false speculation which does not take into account Blizzards licensing fees on authorized guides.
But do they have a right to exclusively license guides? Remember, game rules can only be protected with a patent, provided they satisfy the requirements for patentability. Otherwise they're public domain. A description of them, or software that implements them, might be copyrightable. And the art associated with it might be too. And the name might be trademarkable. But the rules are a pain in the ass to protect. I only know of one game rule patent, in fact.
The guide appears to be a description of how to manipulate the rules. It's not particularly different than a book that tells you the winning strategy for Uno, or chess, or whatever. The fact that the creator of the game can write such a book doesn't mean much if everyone else has the right to do so as well. Their loss of value at the hands of fair and lawful competition is just tough luck.