Require it as a condition of getting a copyright to begin with.
You can't get a patent without disclosing the workings of your invention in a manner that a person having ordinary skill in that field can understand.
And copyright traditionally has required deposit of best copies, i.e. high quality copies placed into government libraries so that they, at least, can preserve the work and act as a seed from which more copies could later be made. (It also helped make the Library of Congress the best library in the world)
Requiring people applying for a copyright on software to comment their code sufficiently that an ordinarily skilled programmer can understand it, and to deposit that source as well as whatever other information is needed to produce the working binaries doesn't seem like a tough thing. People still can't copy it during the term -- but they can study it to learn from it, which is a good thing in the meantime.
It invalidates trade secrets within the work, but this is standard practice in the patent field, and it's not the end of the world.
Plus, there's always the option for developers of not getting a copyright at all, but then they'd lack many legal protections which would probably discourage this. We might further discourage it by having the government fund projects to break DRM (which also should be prohibited as a condition of copyright).
Meh. I think that there should be no attempts at harmonization of copyright law, and that the whole of international law on the subject should be that states should practice national treatment, and that whatever the laws of any state are, they should not conflict so greatly with the laws of other states such that a person could not simultaneously hold a copyright on a work in both jurisdictions.
But generally, copyright law should serve the best interests of the people of the state it's the law of. Some will prefer expansive copyright, others narrow copyright, etc. Let's all figure it out on our own.
See anything in there mentioning that you're allowed to lie about a company in order to defame it and damage its business?
Yes. It's the bit that goes: "Congress shall make no law... abridging the freedom of speech, or of the press."
The First Amendment is an absolute prohibition. You can argue that it's not, maybe even convincingly, but the burden is always on the person that wants to deviate from absolute protection.
Personally, I'm not an absolutist with regards to this, but I must say, it's a tempting position. It's one that has been held by judges and justices throughout the legal system, so it certainly seems to have some traction.
I actually didn't register until they removed the ability to post with a user name but without needing an account. (In fact, I remember when accounts were first introduced here) Altus (1034) was a roommate of mine back then, so had I registered when I first had the opportunity, I likely could've had a lower UID. But whatever. It doesn't matter.
(I don't really program, but I am more tech-savvy than most regular people... or lawyers that I know)
Do you want it to be terse, or do you want it to be precise? It's not always possible to have both. The tradition has been to be precise, particularly since if some legal writing is vague, people will argue about it later, and cases will appear which provide definitive readings, meaning that in order to understand the vague language, you have to read some precise cases afterwards. And remember that it costs more to go to court (involving a lot of billable hours) than it does to do things right the first time, so the people who are telling the lawyers what they want are likely to want to err on the side of precision.
Certainly we try to make things fairly understandable even to lay people, but that's really not the first priority.
What you're asking for is kind of like asking for simpler programming languages so that you could speak a command like 'Get me that letter from Mr. Johnson' and the computer would just do it, since that command didn't go to a program, or an interpreter, but addressed the bare metal.
Well, if not for copyright, how would the creators of easily-copyable things make any money from producing them?
Well, obviously no one would compete with them on a commercial basis unless there were money to be made at producing the copies. So the mere fact that it's easily reproducable doesn't matter.
What you really mean is, without copyright how would a person who has sunk costs in creating a thing recoup his investment? As we can see, recouping marginal costs is something pirates are frequently interested in too.
Of course, being the first to market helps -- pirates take time to gear up and be able to significantly compete with you. Note that for most copyrighted works, virtually all profits that can be made are made within the first few days to months of releasing a work. Only a fraction of profits will ever be recovered, if at all, after that, no matter how long the term is, with only very very rare exceptions.
Having very low sunk costs also helps. In fact, copyright by no means guarantees that you'll recoup your sunk costs. It offers you an opportunity to do so, provided you can within the time limit provided. If you haven't by then, even under the current system, you're just SOL. So perhaps making a movie that costs $100 million isn't so wise, and you should instead make a movie that costs $100 thousand. That it's a lower budget production isn't a bad thing; $100 million is low compared to $100 billion, but even with copyright where it is, no one dreams of making a movie that expensive. Some works just cost too much. Gonna have to cope with that.
Value in the copies is also a factor. Shakespeare is in the public domain now. I can download everything he ever did, for free, totally legally. Nevertheless, I went out and bought an expensive hardback copy for about $80, because I liked that particular copy. Pirates might make cheap copies, but perhaps the author could make a nice one, or rely on intangibles such as the author's reputation v. some generic pirate's, so as to attract customers.
Plus of course, not all costs have to be recovered later. If a group of readers really wanted a particular author to create something, they might offer to pay him. In this case, he's not being paid for the work, per se, but for his labor (which copyright doesn't protect anyway). Pirates avoid sunk costs of this nature, since after all, they're focusing on reproducing other's works. OF course the author is in competition with other authors, and the authors might have similar subject matter (perhaps there is someone out there who can write better Harry Potter novels than JK Rowling, and who could attract her audience). But that's not atypical competition amongst authors anyway. See, e.g. all the cartoons based on the same fairy tales, but Disney's continuing dominance in this field.
And lastly, authors might take a loss, to some degree. Lots of authors create works without any expectation of financial reward. They have other motivations. As a member of the reading public, I like this, since it means that they're giving away their work, and I like getting stuff for free. Perhaps a lot of it is bad, but Sturgeon's Law applies to everything. That something is commercial doesn't make it good.
The fact that there were authors prior to the creation of copyright indicates that it's not necessary. It might provide more fertile grounds for them, and thus help produce more authors, and more creative works. But there's always some creation going on.
The real questions are: how much creation is going on; how much do we want there to be; how much will that cost; and whether it's worth it?
Personally, I think that copyright, in moderation, is a good idea and socially beneficial. We just have too much of it now, which is bad, and not very beneficial. Reducing but not eliminating copyright could leave everyone better off in the end. The trick is that a few benefit greatly from things as they are now, and while they'd still do okay in a more reasonable system, they wouldn't be doing as well. Thus, they oppose attempts at reform because they are already on top and want to stay there, without anyone else joining them.
That's why it's dangerous to have unjust laws -- they put people in the situation where they need to start making these decisions, and then more reasonable laws start getting called into question.
Nevertheless, there are unjust laws. Segregation was unjust, and slavery was unjust. The former was supported by the law for about a century until it began acting sensibly, and the latter took a long and bloody war to get rid of; the law never did.
This situation is not as extreme, but the general point remains that it is very shortsighted to believe that all laws are just, and that legal authorities will correct unjust laws. To trust them, to just follow orders, as it were, is not an excuse for one's own unjust behavior.
But copyright infringement has generally been a civil issue, not a criminal issue.
It's more civil than criminal, but some copyright infringement has been a federal crime since 1897. I think it should be purely civil, but it's not a recent thing.
`Innocent until proven guilty'. He was not proven guilty, so he's still innocent in the eyes of our legal system. You can nitpick about `innocent' not being the same as `not guilty', but as far as our criminal system is concerned, as far as I know, they're the same thing.
They're not the same thing. Plus, it's generally more proper to simply say that the prosecution has the burden of proving beyond a reasonable doubt that a criminal defendant is guilty. As opposed to innocent until proven guilty. It's just discussing who has to do what in a case.
The problem is that those are all fairly low probability events -- not that it's infected, but that someone would zombie your machine just to download music.
Most music piracy on the net is fairly straightfoward. Grasping for alternative theories isn't going to help much in a civil suit, unless it is an extremely strong one.
Basically, the preponderance test can be thought of as occam's razor. If you discover that someone at an IP address is downloading music, which do you honestly believe is the more likely scenario: that the person who lives at the place the account is supposed to be used by is doing it, or that a third party is?
If they really didn't do it, then there are likely to be facts supporting this that can successfully rebut the prima facie case. Of course, the costs involved may yet be prohibitive -- that's what's usually going to result in settlement.
For the RIAA to falsify evidence, however, is highly risky for them, their lawyers, etc. And given how many people really do pirate music, why the need to do so? These suits are fish in a barrel easy.
Frankly, these suits aren't intended to turn a profit (though they should be self-sustaining). They're meant to put the fear of God into people.
If the opportunity is not consistently fulfilled, it's effectiveness as incentive will quickly be nullified.
Well, as I said, most authors are flops with regards to profits derived from a copyright. This is why the various publishing industries try to have a lot of authors -- only one out of a pool of hundreds might be a big success, but he can effectively subsidize all the others.
Still, artists are highly optimistic, and driven by goals other than copyright-derived-wealth. They keep on going for it.
For example, when copyrights were 28+28 years, we had a lot of movies getting made. Now they're 95 years, but reduced costs for given levels of production values (e.g. video as opposed to film; computer as opposed to model and practical effects) probably have been providing a greater incentive than the extra 49 years. If we went back to 28+28 I predict no change at all in the film industry. In fact, we could even reduce it further, I bet, before the mere opportunities (i.e an opportunity of x years of profit) were too low.
But term length doesn't stop flops from flopping. Movies frequently don't provide any or a big enough return on investment. They still get made, though. Thus they had big expectations, they got an opportunity, but they also didn't see their expectations fulfilled.
So while I'm not saying to offer the incentive then take it away, I am saying that the incentive should be such that we get the most bang for our buck, rather than the most bang period.
The majority of commerically produced works have economic value for at least 5 years (assuming they had ANY value to begin with, which some of them do not due to audience disapproval). Any individual human has more than a 4% chance of death within a 5 year period. So an event you called "tremendously rare" will actually happen 4% of the time.
4% isn't much. But yes, you're right in that I had been going from the perspective of someone who didn't die quite rapidly. Instead I was thinking of the 96% who will outlive their work's commercial life, usually.
Not for any of the definitions of "knowledge" found in an English dictionary. Knowledge is by definition not "creative", but observed from the world around you- just like science (which explains how they may have been used interchangably)
Well, knowledge can be anything people know. But what you've got to do is consult the 1789 meaning of the word. I suggest the OED for this task. Or again, to look at the structure of the clause, at the relevant laws, documents written at the time, on the relevant subjects, etc.
It wasn't I who claimed copyright is meant to reward authors!
Reviewing the thread, I see this is correct. My apologies.
The last major revision to copyright law was the 1976 Act, which became effective in 1978.
But generally what's important is the date that things occur. If you reproduce the record now, then that falls under current law, because you're doing it now. Prior law may have some impact (e.g. did it enter the public domain under the 1909 Act?) as may other law, but mainly you can expect the current law to control.
Well, it's that you, at the time had one. They just want to look at it now. If you didn't have one, you need only say so. But don't lie, since then you start getting into trouble.
You seem to keep trying to lie in order to escape justice. This usually comes out in the end, and it doesn't work well for you.
3) Contempt Of what? RIAA?!? If it's "Of Court", then it is the COURT ordering I turn over the computer, and I'll send it to the court, NOT the RIAA.
If you don't comply with a discovery request, the requestor goes to court to get a court order demanding that you comply with the discovery request. If you still do not do so, you are in contempt of court, and the court may fine or jail you until you turn it over to the party making the request. The court doesn't want to see the computer. Frankly, it likes it when people settle.
Looking at evidence is the job of the parties; they winnow it down to what they cannot agree on. Then, if there is anything they can't agree on, that gets decided in court.
Point is, they don't know what "it all" is. Can't ask for something you don't know exists.
That's why the request is made in a very open-ended fashion. They'll just say something like 'all computer storage devices you had on such and such a date.'
The purpose of discovery after all is to fill in gaps in each side's knowledge.
Besides, do you know I run a business off that computer, and I have my own and other's personal email on it? I'm sure there are some laws that protect my (and other's) privacy, as well as my livelihood.
That just means that they have to be careful in how they conduct their discovery. You can't avoid it, however.
And I have no moral problem lying under oath to those bastards.
Fair enough, but perjury is a crime.
What differentiates a situation where I am UNABLE to comply from a situation where I AM able, but FAIL to comply??
Providing an adequate explaination to the court as to why you are unable to comply, and getting the court to accept it.
And the RIAA is using civil law to punish people (and profit!) for what has traditionally been the sort of thing that has been a criminal case. [Though I'm not sure that sharing some mp3s or movies is even a criminal matter at all, just a civil one (I'd assume that you know, however). And if it is, it's not something the police are likely to care about it, not on a small scale anyways.]
Actually, copyright infringement has been civil far longer than criminal. In fact, I don't see why it should be criminalized at all. It's easy for copyright holders to sue themselves, receive damages which help cure whatever harm they've suffered, and stop infringers, in a purely civil system.
Also, it's a federal crime, a felony, so you end up seeing federal law enforcement, often, but not always, the FBI. Criminal copyright suits must be brought by the US Dept. of Justice.
And sharing them can easily be a criminal matter, especially with the new law passed just recently that expands criminal liability.
It seems to be the new legal `thing' -- when criminal charges fail, go with civil charges. OJ was found innocent of murder (I certainly agree that he seemed guilty, but `beyond a reasonable doubt' ? Probably not...) but he lost the civil suit, and made the family of his dead wife lots of money.
Not really. Civil plaintiffs aren't really helped at all by criminal prosecution. Hence the separate courses of action. In fact, you usually want to have the civil suit first so that the defendant has money to pay damages -- otherwise he'll spend it all on his criminal defense, or won't care since he's already in jail, and you can't make his life significantly worse.
It doesn't prove it. It makes me perhaps 70% sure you're a lawyer.
Well, that's good enough in most civil suits!;)
I imagine there's some paperwork that goes along with passing the bar
When I was sworn in, I got a wall certificate. When I paid my dues, I got a little card that I keep in my wallet, and it has my ID number on it. Gotta have that in order to submit paperwork to court.
The MA wall certificate isn't very fancy looking though, given how much I paid for taking the bar and in dues. Thus I will plan to become a member of the US Supreme Court bar, which has a much more impressive looking piece of paper.
The third one is trademarks, actually. And at any rate, I'm licensed in MA which has opened it up for anything. But there's still the higher standard applied if you use the magic word. Thus, it's probably possible to get a similar effect ethically, without incurring the increased burden.
If the mine is contaminated, it has no value to the woman while she is alive.
And 99.44% of copyrighted works have no value to their authors while the authors are alive, or after their deaths. So it is a bad idea to have long copyright terms, since very few people will profit from them, and the long terms are not necessary in order to encourage authors to create.
if you say that copyright should end at death
I do not. I think copyrights should require effort on the part of an author in order to get them (i.e. they would need to be applied for) and that they should only last for 25 years tops. Maybe less.
I think that the life of the author should be irrelevant.
No, I am not.
Yes you are, because it is tremendously rare to create a work with economic value that lasts not only until death, but beyond. The odds of creating such a work are on par with the odds of winning the lottery. Such people can probably take care of themselves; they don't need extra help.
Remember, copyright is not intended to reward artists, it is intended to put forth the least possible promise of a reward, to spur them on. So long as they strive for it, it doesn't actually matter whether or not they get it.
It is very similar to how a farmer might dangle a carrot in front of a donkey to get it to pull a wagon to market. The intent of the farmer is not to give carrots to the donkey. Ideally, he will give the donkey none, or at least the fewest necessary to get to market. Plus, unless he profits more from getting to market than he loses by wasting carrots on the donkey, the whole exercise is pointless, and the donkey should get nothing.
You should avoid having romantic ideas about authors when considering copyright policy. It only fucks things up.
Did you notice that that sentence is agreeing with me?
It doesn't. Star Wars -- the movie -- falls within the realm of general knowledge. Congress can therefore grant it a copyright in order to promote the progress of science.
The Commerce Clause, it is well established, cannot provide copyright-like protections. Only the Copyright Clause can be used for this. Congress has to live with the limits that flow from it. To do otherwise would be to vitiate those limits.
And, how are they going to get my computer? Ask me to send it to them?
Yes. And you're going to, or else, like I said, you end up in trouble for contempt.
Either way, a nuke-n-pave as soon as they actually sue will probably take care of it. Unless you really think they'll pay $10,000 for a lab to look at my HD with an electron mocroscope. (Besides- WHICH HD?? I have 3 in my computer right now. The boot drive doesn't have squat on it, and they are welcome to look at it all they want. The others can removed in less than 2 minutes.)
They'll request it all. And they'll likely ask you under oath if you erased anything. And what it was that you erased. And why you decided to erase it.
The fact that you took action that would destroy evidence, in direct response to the commencement of a suit, strongly implies that you're liable.
Trust me -- better men than you have tried to foil discovery.
Like I said, an open WiFi AP or a trojaned computer certainly refute it.
The former likely will not; most wifi traffic over wifi installed in homes is probably not that of third parties. The latter might, but only if it were trojaned at the time, and on the whole, it's still a fairly improbable circumstance. You're going to have to work hard to convince the court that it really wasn't you.
Only if they can prove (there's that word again!) you did it!
Failure to comply is easy to prove. Ignoring a request too long, or explicitly refusing to comply is sufficient, unless the judge decides that the request wasn't proper.
And discovery goes both ways...It would be a chance to get their books opened up for one.
But discovery doesn't extend to everything -- it's only really for things relevant to the case at hand.
So... how are you going to use their books to prove that you didn't do it? If you don't have a good reason, the request will be challenged, and you'll lose.
Maybe I'm wrong, but I thought only the police could do that.
Nope. Rule 34 allows this. It's often used to require parties to give copies of all relevant documents to the other side. But it can also be used to inspect things, such as your computer.
Discovery rules do accomodate concerns about abuse, so it'd be difficult to use them to engage in outright espionage, I think.
I always thought I'd be great at that. I can split hairs with the best of them.
You can ask questions other than those with yes or no answers. And you can get in trouble for avoiding them too creatively.
See the thing about civil litigation is, the entire system is designed so that there are no secrets, and no surprises. Each party knows all the relevant facts about the case, way in advance, so that the case can be dealt with as rapidly as possible while still being fair.
Congratulations-you proved it came from my DSL line. Now prove it was MY computer, and that it was ME.
Like I said, probability is sufficient. If it was probably your computer, and it was probably you using it, then it was. Once a probability has been shown, it's up to you to refute it.
Also failure to comply with discovery -- e.g. hiding evidence -- can end up with you in jail for contempt of court, if carried too far. And it makes the judge really pissed off, which means that whenever he could be lenient, but isn't required to be, he probably will not be.
And your lawyer, faced with your shennanigans, may end up quitting, forcing you to find new representation, if someone will take you.
That's a very interesting viewpoint. So if the the alleged copyright infringement was tracked down to a specific computer, and person A used the computer for 4 hours that day, and person B for 3 hours that day, and they can't narrow it down any more than that, person A is guilty?
Actually, something even better occurs.
First, we're talking about civil suits brought by a civil plaintiff such as RIAA, not criminal suits brought by the United States. So this also means we're looking for liability; not guilt.
This is also why the burdens are different. In a criminal suit, you generally have to prove guilt beyond a reasonable doubt. This is much harder than merely proving liability by a preponderance of the evidence, as is the norm in civil suits. (An intermediate step is proof by clear and convincing evidence)
Anyway, in a scenario such as you describe, what is actually likely to occur is that A and B are jointly and severally liable. The idea is that the plaintiff shouldn't lose just because he can't narrow it down between such a small and defined group of plaintiffs. So A and B together have to pay the sum of the damages (no doubling of the amount, mind) and can then work it out between themselves who did it, with the liable party repaying the non-liable party.
You'll find that US law is quite favorable to civil plaintiffs.
Ok, you're a lawyer. (I'm certainly not.) What is your specialty?
If this answer doesn't prove I'm a lawyer, probably nothing will.
As it happens, lawyers sometimes aren't allowed to claim to have a specialty, as the rules governing the profession are greatly concerned with misleading actual or potential clients and the public. Even when we can, it holds us up to a higher standard of conduct than usual.
So, if you're simply asking what sorts of cases I generally work on, then I generally work on copyright and trademark matters. And of course, like most lawyers, I also end up with some other sorts of cases at times.
No. It's a boxing reference. If a boxer is taking a beating and is obviously going to lose, it is not uncommon for his coach to give up the match. One way to signify this is to throw in the towel that had been used to clean up the boxer when he was in his corner between rounds.
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Require it as a condition of getting a copyright to begin with.
You can't get a patent without disclosing the workings of your invention in a manner that a person having ordinary skill in that field can understand.
And copyright traditionally has required deposit of best copies, i.e. high quality copies placed into government libraries so that they, at least, can preserve the work and act as a seed from which more copies could later be made. (It also helped make the Library of Congress the best library in the world)
Requiring people applying for a copyright on software to comment their code sufficiently that an ordinarily skilled programmer can understand it, and to deposit that source as well as whatever other information is needed to produce the working binaries doesn't seem like a tough thing. People still can't copy it during the term -- but they can study it to learn from it, which is a good thing in the meantime.
It invalidates trade secrets within the work, but this is standard practice in the patent field, and it's not the end of the world.
Plus, there's always the option for developers of not getting a copyright at all, but then they'd lack many legal protections which would probably discourage this. We might further discourage it by having the government fund projects to break DRM (which also should be prohibited as a condition of copyright).
Meh. I think that there should be no attempts at harmonization of copyright law, and that the whole of international law on the subject should be that states should practice national treatment, and that whatever the laws of any state are, they should not conflict so greatly with the laws of other states such that a person could not simultaneously hold a copyright on a work in both jurisdictions.
But generally, copyright law should serve the best interests of the people of the state it's the law of. Some will prefer expansive copyright, others narrow copyright, etc. Let's all figure it out on our own.
See anything in there mentioning that you're allowed to lie about a company in order to defame it and damage its business?
... abridging the freedom of speech, or of the press."
Yes. It's the bit that goes: "Congress shall make no law
The First Amendment is an absolute prohibition. You can argue that it's not, maybe even convincingly, but the burden is always on the person that wants to deviate from absolute protection.
Personally, I'm not an absolutist with regards to this, but I must say, it's a tempting position. It's one that has been held by judges and justices throughout the legal system, so it certainly seems to have some traction.
I actually didn't register until they removed the ability to post with a user name but without needing an account. (In fact, I remember when accounts were first introduced here) Altus (1034) was a roommate of mine back then, so had I registered when I first had the opportunity, I likely could've had a lower UID. But whatever. It doesn't matter.
(I don't really program, but I am more tech-savvy than most regular people... or lawyers that I know)
Then you should start smoking, then quit.
Naw, it's not that surprising to see lawyers with 4 digit UIDs.
can't "legalese" be a lot less verbose?
Do you want it to be terse, or do you want it to be precise? It's not always possible to have both. The tradition has been to be precise, particularly since if some legal writing is vague, people will argue about it later, and cases will appear which provide definitive readings, meaning that in order to understand the vague language, you have to read some precise cases afterwards. And remember that it costs more to go to court (involving a lot of billable hours) than it does to do things right the first time, so the people who are telling the lawyers what they want are likely to want to err on the side of precision.
Certainly we try to make things fairly understandable even to lay people, but that's really not the first priority.
What you're asking for is kind of like asking for simpler programming languages so that you could speak a command like 'Get me that letter from Mr. Johnson' and the computer would just do it, since that command didn't go to a program, or an interpreter, but addressed the bare metal.
Well, if not for copyright, how would the creators of easily-copyable things make any money from producing them?
Well, obviously no one would compete with them on a commercial basis unless there were money to be made at producing the copies. So the mere fact that it's easily reproducable doesn't matter.
What you really mean is, without copyright how would a person who has sunk costs in creating a thing recoup his investment? As we can see, recouping marginal costs is something pirates are frequently interested in too.
Of course, being the first to market helps -- pirates take time to gear up and be able to significantly compete with you. Note that for most copyrighted works, virtually all profits that can be made are made within the first few days to months of releasing a work. Only a fraction of profits will ever be recovered, if at all, after that, no matter how long the term is, with only very very rare exceptions.
Having very low sunk costs also helps. In fact, copyright by no means guarantees that you'll recoup your sunk costs. It offers you an opportunity to do so, provided you can within the time limit provided. If you haven't by then, even under the current system, you're just SOL. So perhaps making a movie that costs $100 million isn't so wise, and you should instead make a movie that costs $100 thousand. That it's a lower budget production isn't a bad thing; $100 million is low compared to $100 billion, but even with copyright where it is, no one dreams of making a movie that expensive. Some works just cost too much. Gonna have to cope with that.
Value in the copies is also a factor. Shakespeare is in the public domain now. I can download everything he ever did, for free, totally legally. Nevertheless, I went out and bought an expensive hardback copy for about $80, because I liked that particular copy. Pirates might make cheap copies, but perhaps the author could make a nice one, or rely on intangibles such as the author's reputation v. some generic pirate's, so as to attract customers.
Plus of course, not all costs have to be recovered later. If a group of readers really wanted a particular author to create something, they might offer to pay him. In this case, he's not being paid for the work, per se, but for his labor (which copyright doesn't protect anyway). Pirates avoid sunk costs of this nature, since after all, they're focusing on reproducing other's works. OF course the author is in competition with other authors, and the authors might have similar subject matter (perhaps there is someone out there who can write better Harry Potter novels than JK Rowling, and who could attract her audience). But that's not atypical competition amongst authors anyway. See, e.g. all the cartoons based on the same fairy tales, but Disney's continuing dominance in this field.
And lastly, authors might take a loss, to some degree. Lots of authors create works without any expectation of financial reward. They have other motivations. As a member of the reading public, I like this, since it means that they're giving away their work, and I like getting stuff for free. Perhaps a lot of it is bad, but Sturgeon's Law applies to everything. That something is commercial doesn't make it good.
The fact that there were authors prior to the creation of copyright indicates that it's not necessary. It might provide more fertile grounds for them, and thus help produce more authors, and more creative works. But there's always some creation going on.
The real questions are: how much creation is going on; how much do we want there to be; how much will that cost; and whether it's worth it?
Personally, I think that copyright, in moderation, is a good idea and socially beneficial. We just have too much of it now, which is bad, and not very beneficial. Reducing but not eliminating copyright could leave everyone better off in the end. The trick is that a few benefit greatly from things as they are now, and while they'd still do okay in a more reasonable system, they wouldn't be doing as well. Thus, they oppose attempts at reform because they are already on top and want to stay there, without anyone else joining them.
That's why it's dangerous to have unjust laws -- they put people in the situation where they need to start making these decisions, and then more reasonable laws start getting called into question.
Nevertheless, there are unjust laws. Segregation was unjust, and slavery was unjust. The former was supported by the law for about a century until it began acting sensibly, and the latter took a long and bloody war to get rid of; the law never did.
This situation is not as extreme, but the general point remains that it is very shortsighted to believe that all laws are just, and that legal authorities will correct unjust laws. To trust them, to just follow orders, as it were, is not an excuse for one's own unjust behavior.
But copyright infringement has generally been a civil issue, not a criminal issue.
It's more civil than criminal, but some copyright infringement has been a federal crime since 1897. I think it should be purely civil, but it's not a recent thing.
`Innocent until proven guilty'. He was not proven guilty, so he's still innocent in the eyes of our legal system. You can nitpick about `innocent' not being the same as `not guilty', but as far as our criminal system is concerned, as far as I know, they're the same thing.
They're not the same thing. Plus, it's generally more proper to simply say that the prosecution has the burden of proving beyond a reasonable doubt that a criminal defendant is guilty. As opposed to innocent until proven guilty. It's just discussing who has to do what in a case.
The problem is that those are all fairly low probability events -- not that it's infected, but that someone would zombie your machine just to download music.
Most music piracy on the net is fairly straightfoward. Grasping for alternative theories isn't going to help much in a civil suit, unless it is an extremely strong one.
Basically, the preponderance test can be thought of as occam's razor. If you discover that someone at an IP address is downloading music, which do you honestly believe is the more likely scenario: that the person who lives at the place the account is supposed to be used by is doing it, or that a third party is?
If they really didn't do it, then there are likely to be facts supporting this that can successfully rebut the prima facie case. Of course, the costs involved may yet be prohibitive -- that's what's usually going to result in settlement.
For the RIAA to falsify evidence, however, is highly risky for them, their lawyers, etc. And given how many people really do pirate music, why the need to do so? These suits are fish in a barrel easy.
Frankly, these suits aren't intended to turn a profit (though they should be self-sustaining). They're meant to put the fear of God into people.
If the opportunity is not consistently fulfilled, it's effectiveness as incentive will quickly be nullified.
Well, as I said, most authors are flops with regards to profits derived from a copyright. This is why the various publishing industries try to have a lot of authors -- only one out of a pool of hundreds might be a big success, but he can effectively subsidize all the others.
Still, artists are highly optimistic, and driven by goals other than copyright-derived-wealth. They keep on going for it.
For example, when copyrights were 28+28 years, we had a lot of movies getting made. Now they're 95 years, but reduced costs for given levels of production values (e.g. video as opposed to film; computer as opposed to model and practical effects) probably have been providing a greater incentive than the extra 49 years. If we went back to 28+28 I predict no change at all in the film industry. In fact, we could even reduce it further, I bet, before the mere opportunities (i.e an opportunity of x years of profit) were too low.
But term length doesn't stop flops from flopping. Movies frequently don't provide any or a big enough return on investment. They still get made, though. Thus they had big expectations, they got an opportunity, but they also didn't see their expectations fulfilled.
So while I'm not saying to offer the incentive then take it away, I am saying that the incentive should be such that we get the most bang for our buck, rather than the most bang period.
The majority of commerically produced works have economic value for at least 5 years (assuming they had ANY value to begin with, which some of them do not due to audience disapproval). Any individual human has more than a 4% chance of death within a 5 year period. So an event you called "tremendously rare" will actually happen 4% of the time.
4% isn't much. But yes, you're right in that I had been going from the perspective of someone who didn't die quite rapidly. Instead I was thinking of the 96% who will outlive their work's commercial life, usually.
Not for any of the definitions of "knowledge" found in an English dictionary. Knowledge is by definition not "creative", but observed from the world around you- just like science (which explains how they may have been used interchangably)
Well, knowledge can be anything people know. But what you've got to do is consult the 1789 meaning of the word. I suggest the OED for this task. Or again, to look at the structure of the clause, at the relevant laws, documents written at the time, on the relevant subjects, etc.
It wasn't I who claimed copyright is meant to reward authors!
Reviewing the thread, I see this is correct. My apologies.
The last major revision to copyright law was the 1976 Act, which became effective in 1978.
But generally what's important is the date that things occur. If you reproduce the record now, then that falls under current law, because you're doing it now. Prior law may have some impact (e.g. did it enter the public domain under the 1909 Act?) as may other law, but mainly you can expect the current law to control.
That's funny if true. Still, if it's the only thing standing between you and an infringement suit, it might pay to be cautious.
They have yet to prove I HAVE a computer.
Well, it's that you, at the time had one. They just want to look at it now. If you didn't have one, you need only say so. But don't lie, since then you start getting into trouble.
You seem to keep trying to lie in order to escape justice. This usually comes out in the end, and it doesn't work well for you.
3) Contempt Of what? RIAA?!? If it's "Of Court", then it is the COURT ordering I turn over the computer, and I'll send it to the court, NOT the RIAA.
If you don't comply with a discovery request, the requestor goes to court to get a court order demanding that you comply with the discovery request. If you still do not do so, you are in contempt of court, and the court may fine or jail you until you turn it over to the party making the request. The court doesn't want to see the computer. Frankly, it likes it when people settle.
Looking at evidence is the job of the parties; they winnow it down to what they cannot agree on. Then, if there is anything they can't agree on, that gets decided in court.
Point is, they don't know what "it all" is. Can't ask for something you don't know exists.
That's why the request is made in a very open-ended fashion. They'll just say something like 'all computer storage devices you had on such and such a date.'
The purpose of discovery after all is to fill in gaps in each side's knowledge.
Besides, do you know I run a business off that computer, and I have my own and other's personal email on it? I'm sure there are some laws that protect my (and other's) privacy, as well as my livelihood.
That just means that they have to be careful in how they conduct their discovery. You can't avoid it, however.
And I have no moral problem lying under oath to those bastards.
Fair enough, but perjury is a crime.
What differentiates a situation where I am UNABLE to comply from a situation where I AM able, but FAIL to comply??
Providing an adequate explaination to the court as to why you are unable to comply, and getting the court to accept it.
And the RIAA is using civil law to punish people (and profit!) for what has traditionally been the sort of thing that has been a criminal case. [Though I'm not sure that sharing some mp3s or movies is even a criminal matter at all, just a civil one (I'd assume that you know, however). And if it is, it's not something the police are likely to care about it, not on a small scale anyways.]
...) but he lost the civil suit, and made the family of his dead wife lots of money.
;)
Actually, copyright infringement has been civil far longer than criminal. In fact, I don't see why it should be criminalized at all. It's easy for copyright holders to sue themselves, receive damages which help cure whatever harm they've suffered, and stop infringers, in a purely civil system.
Also, it's a federal crime, a felony, so you end up seeing federal law enforcement, often, but not always, the FBI. Criminal copyright suits must be brought by the US Dept. of Justice.
And sharing them can easily be a criminal matter, especially with the new law passed just recently that expands criminal liability.
It seems to be the new legal `thing' -- when criminal charges fail, go with civil charges. OJ was found innocent of murder (I certainly agree that he seemed guilty, but `beyond a reasonable doubt' ? Probably not
Not really. Civil plaintiffs aren't really helped at all by criminal prosecution. Hence the separate courses of action. In fact, you usually want to have the civil suit first so that the defendant has money to pay damages -- otherwise he'll spend it all on his criminal defense, or won't care since he's already in jail, and you can't make his life significantly worse.
It doesn't prove it. It makes me perhaps 70% sure you're a lawyer.
Well, that's good enough in most civil suits!
I imagine there's some paperwork that goes along with passing the bar
When I was sworn in, I got a wall certificate. When I paid my dues, I got a little card that I keep in my wallet, and it has my ID number on it. Gotta have that in order to submit paperwork to court.
The MA wall certificate isn't very fancy looking though, given how much I paid for taking the bar and in dues. Thus I will plan to become a member of the US Supreme Court bar, which has a much more impressive looking piece of paper.
The third one is trademarks, actually. And at any rate, I'm licensed in MA which has opened it up for anything. But there's still the higher standard applied if you use the magic word. Thus, it's probably possible to get a similar effect ethically, without incurring the increased burden.
And of course, I do not mean to mislead.
If the mine is contaminated, it has no value to the woman while she is alive.
And 99.44% of copyrighted works have no value to their authors while the authors are alive, or after their deaths. So it is a bad idea to have long copyright terms, since very few people will profit from them, and the long terms are not necessary in order to encourage authors to create.
if you say that copyright should end at death
I do not. I think copyrights should require effort on the part of an author in order to get them (i.e. they would need to be applied for) and that they should only last for 25 years tops. Maybe less.
I think that the life of the author should be irrelevant.
No, I am not.
Yes you are, because it is tremendously rare to create a work with economic value that lasts not only until death, but beyond. The odds of creating such a work are on par with the odds of winning the lottery. Such people can probably take care of themselves; they don't need extra help.
Remember, copyright is not intended to reward artists, it is intended to put forth the least possible promise of a reward, to spur them on. So long as they strive for it, it doesn't actually matter whether or not they get it.
It is very similar to how a farmer might dangle a carrot in front of a donkey to get it to pull a wagon to market. The intent of the farmer is not to give carrots to the donkey. Ideally, he will give the donkey none, or at least the fewest necessary to get to market. Plus, unless he profits more from getting to market than he loses by wasting carrots on the donkey, the whole exercise is pointless, and the donkey should get nothing.
You should avoid having romantic ideas about authors when considering copyright policy. It only fucks things up.
Did you notice that that sentence is agreeing with me?
It doesn't. Star Wars -- the movie -- falls within the realm of general knowledge. Congress can therefore grant it a copyright in order to promote the progress of science.
The Commerce Clause, it is well established, cannot provide copyright-like protections. Only the Copyright Clause can be used for this. Congress has to live with the limits that flow from it. To do otherwise would be to vitiate those limits.
I don't know what driving from Boston to NYC is like
Why would anyone want to leave Boston, especially in order to go to New York?
And, how are they going to get my computer? Ask me to send it to them?
Yes. And you're going to, or else, like I said, you end up in trouble for contempt.
Either way, a nuke-n-pave as soon as they actually sue will probably take care of it. Unless you really think they'll pay $10,000 for a lab to look at my HD with an electron mocroscope. (Besides- WHICH HD?? I have 3 in my computer right now. The boot drive doesn't have squat on it, and they are welcome to look at it all they want. The others can removed in less than 2 minutes.)
They'll request it all. And they'll likely ask you under oath if you erased anything. And what it was that you erased. And why you decided to erase it.
The fact that you took action that would destroy evidence, in direct response to the commencement of a suit, strongly implies that you're liable.
Trust me -- better men than you have tried to foil discovery.
Like I said, an open WiFi AP or a trojaned computer certainly refute it.
The former likely will not; most wifi traffic over wifi installed in homes is probably not that of third parties. The latter might, but only if it were trojaned at the time, and on the whole, it's still a fairly improbable circumstance. You're going to have to work hard to convince the court that it really wasn't you.
Only if they can prove (there's that word again!) you did it!
Failure to comply is easy to prove. Ignoring a request too long, or explicitly refusing to comply is sufficient, unless the judge decides that the request wasn't proper.
And discovery goes both ways...It would be a chance to get their books opened up for one.
But discovery doesn't extend to everything -- it's only really for things relevant to the case at hand.
So... how are you going to use their books to prove that you didn't do it? If you don't have a good reason, the request will be challenged, and you'll lose.
Maybe I'm wrong, but I thought only the police could do that.
Nope. Rule 34 allows this. It's often used to require parties to give copies of all relevant documents to the other side. But it can also be used to inspect things, such as your computer.
Discovery rules do accomodate concerns about abuse, so it'd be difficult to use them to engage in outright espionage, I think.
I always thought I'd be great at that. I can split hairs with the best of them.
You can ask questions other than those with yes or no answers. And you can get in trouble for avoiding them too creatively.
See the thing about civil litigation is, the entire system is designed so that there are no secrets, and no surprises. Each party knows all the relevant facts about the case, way in advance, so that the case can be dealt with as rapidly as possible while still being fair.
Congratulations-you proved it came from my DSL line. Now prove it was MY computer, and that it was ME.
Like I said, probability is sufficient. If it was probably your computer, and it was probably you using it, then it was. Once a probability has been shown, it's up to you to refute it.
Also failure to comply with discovery -- e.g. hiding evidence -- can end up with you in jail for contempt of court, if carried too far. And it makes the judge really pissed off, which means that whenever he could be lenient, but isn't required to be, he probably will not be.
And your lawyer, faced with your shennanigans, may end up quitting, forcing you to find new representation, if someone will take you.
That's a very interesting viewpoint. So if the the alleged copyright infringement was tracked down to a specific computer, and person A used the computer for 4 hours that day, and person B for 3 hours that day, and they can't narrow it down any more than that, person A is guilty?
Actually, something even better occurs.
First, we're talking about civil suits brought by a civil plaintiff such as RIAA, not criminal suits brought by the United States. So this also means we're looking for liability; not guilt.
This is also why the burdens are different. In a criminal suit, you generally have to prove guilt beyond a reasonable doubt. This is much harder than merely proving liability by a preponderance of the evidence, as is the norm in civil suits. (An intermediate step is proof by clear and convincing evidence)
Anyway, in a scenario such as you describe, what is actually likely to occur is that A and B are jointly and severally liable. The idea is that the plaintiff shouldn't lose just because he can't narrow it down between such a small and defined group of plaintiffs. So A and B together have to pay the sum of the damages (no doubling of the amount, mind) and can then work it out between themselves who did it, with the liable party repaying the non-liable party.
You'll find that US law is quite favorable to civil plaintiffs.
Ok, you're a lawyer. (I'm certainly not.) What is your specialty?
If this answer doesn't prove I'm a lawyer, probably nothing will.
As it happens, lawyers sometimes aren't allowed to claim to have a specialty, as the rules governing the profession are greatly concerned with misleading actual or potential clients and the public. Even when we can, it holds us up to a higher standard of conduct than usual.
So, if you're simply asking what sorts of cases I generally work on, then I generally work on copyright and trademark matters. And of course, like most lawyers, I also end up with some other sorts of cases at times.
No. It's a boxing reference. If a boxer is taking a beating and is obviously going to lose, it is not uncommon for his coach to give up the match. One way to signify this is to throw in the towel that had been used to clean up the boxer when he was in his corner between rounds.