Now you have definitely lost me (and I even have to quote myself for context). How is my desire to opt in to business correspondance I want, rather than opt out from correspondance I don't want, a threat to free speech? I'm not calling the cops to stop anybody from talking, I'm simply refusing to do business with them if they insist on treating me like a credit card with two eyeballs and no brain. Their speech is free from government interference; they just can't count on selling anything to me if they say things I don't like. I'm not the government; I have no obligations to them.
Perhaps I didn't quite understand you there.
What I thought you were saying was that commercial speech should be opt in, rather than opt out, and that this should be enforced by the government. So for example, people would be unable to send you advertising in the mail unless you expressly told them that you wanted it. Unsolicited ads would be met with legal action by private parties or the government on its own behalf.
However, now it sounds as though you merely will refuse to do business with people that send unsolicited junk mail to you, and that's the end of it.
If the latter, then I have no problem with it. I have a similar policy, in fact.
How could a filter be "abused"?
If it's a public blacklist, and it's erroneous, there may be some risk of libel or perhaps some other business torts. These might require actively and maliciously adding entries to the list, but that's why I said 'abused;' it has those connotations.
However, if the joint message sent to me by all spammers and their lawyers is "We have the government on our side, we will bury you in ads unless you give in to our demands, and there is absolutely nothing you can do to stop us short of resorting to violence", then I probably will resort to violence, even if it's illegal.
But there is something you can do to stop them: the opt out.
Remember, the way the first amendment protections shake out, the only protected spam is that which isn't misleading or relates to unlawful activity, and even then only so long as people don't opt out to it in some fashion (either globally or to specific spammers). The protected subset of spam hardly seems to be flooding our mailboxes, and the sorts of people who send it likely would adhere to opt outs in order to continue to protect themselves.
The other sort of spam remains a problem, but so far I haven't seen good legal solutions that would reduce it. I mean, a lot of these people are committing fraud already, and that's illegal already, whatever means are employed. Stopping them can either be done basically with our existing laws, or won't be able to be helped with a ban on spam generally. (And such a ban would harm the more decent spammers as previously described)
Filtering seems to me to be the best solution at a practical level then, and also to avoid unduly trampling on the rights of spammers with good practices, when such trampling won't stop the spammers with bad practices.
Downloading necessarily involves reproduction, which is one of the exclusive rights of the copyright holder, at 106(1).
When you download, you direct your computer to write information into one memory or another (e.g. RAM, HD, etc.). Due to the definition of a copy in section 101, these are material objects, and the downloading process results in fixing a work into them. Thus, they become new copies. And fixing works into tangible media so that they become new copies is reproduction and it's prohibited.
You're probably getting confused by the vernacular definition of a copy, e.g. that a file on a computer is a copy. Really it's the RAM, or the hard drive, etc. that is the copy; the file is just an instance of the intangible creative work.
I'm not really sure where you're getting the uploader part, though. It seems pretty obvious that the downloader is responsible for his own downloads. No one is forcing his computer to do it, after all. There've been some cases along these lines. You may want to read this case, which briefly runs through the analysis with regards to the downloading of web pages as a part of the process of viewing them. The court concludes that it can be an infringement on the part of the viewer. It also cites to other on-point cases if you want to follow up.
If you're just singing along in that situation, it's not making a copy to begin with. Nor is it a public performance, unless you're pretty open about who you shower with. So there's no occassion to worry about fair use yet anyway.
Why would I want any other solution, if it still requires opt-out (besides the do-not-call list, which I don't want either)?
Because it's more important that there be free speech than that the world suit any one person's individual preferences, and hopefully you realize this.
I didn't suggest violating the law. "Killing" a spammer doesn't necessarily equate shortening his biological life, just removing his ability to spam, say by public blacklisting. Usenet "kill files" were invented long ago, and they aren't lethal weapons.
I don't have a problem with what are essentially filters. Of course, you should still ensure that they're not abused.
Then don't invite people to commit mail fraud by leaving them no other option to make their point.
Offering people magazine subscriptions is not an invitation to mail fraud. Revenge isn't really acceptable in civilized society; we should not try to make it more so, either. It's always uncalled for. Particularly when the revenge is far out of proportion to an imagined harm.
Just to cover things from the US side, over here, reproducing works is illegal (and tends to occur in the course of downloading), and distribution is also illegal (and tends to occur in the course of uploading or sharing). Some other things are also illegal. And there are various exceptions and so forth.
It's important to note that the act ultimately carried out by a human being is what's illegal; the actual copies involved are not, though they may have been made unlawfully.
Perhaps things are different in your neck of the woods?
In the US, ISPs may be protected from liability due to their users' actions by 17 USC 512 and 47 USC 230. Of course, these don't apply to everything, so it depends on the actions involved.
No, you continue to misunderstand me, perhaps deliberately.
Here is what I am saying:
Spammers have a right to send spam without being prevented by doing this by the government.
However, if recipients provide reasonable notice to spammers to stop sending them spam, then perhaps the government can step in on behalf of the notifying recipients.
Filtering is not reasonable notice, however. Notice must be in some way affirmative and externally visible, e.g. saying that you don't want spam. Filtering is merely ignoring spam, which isn't sufficient.
Spammers' right to send spam in the absence of notice in no way impairs recipients from filtering spam as they please.
And despite your persistant nonsense, mail filters aren't a security measure against mere speech. Speaking is not even vaguely similar to lockpicking or the like, and cannot be analogized to it.
A do-not-mail list works best when the marketer actually wants to respect my wish to be left alone. If I can't trust the marketer to do that, but I have to call for the government to "enforce" my wish against someone desperately trying various legal tricks to be able to mail me anyway, I clearly can't trust that person with even having my address in the first place. A law then requiring me to still submit my address to that scumbag in order to invoke my "rights" is worse than useless, and I will not participate in that legal farce anymore, but rely entirely on physical means of protection instead, such as refusing him access to my mail server, or even more drastic measures (of course first checking that the marketer isn't found on my do-not-kill list).
Well, this is precisely how the do not call lists work -- telemarketers consult their list of numbers against a master list of numbers that have been entered onto the list by the people the numbers roughly correspond to. The telemarketers know which numbers not to call, and don't. If they do, remedies are available against them.
I'm a little curious as to what other solutions you can think of which still require an opt out.
Plus, it's not as though you have to opt out. You can always just passively reject communications, e.g. via filtering. Of course, more drastic measures could justifiably get you into trouble. Disliking spam is no excuse for criminal or tortious behavior.
Sending unwanted advertising is not communication any more than mailing an unwritten brick is; it takes at least two voluntary parties to communicate.
Communication can certainly be one way. The guy on the corner holding up the sign about the end of the world is certainly speaking; you aren't required to pay attention for him to exercise his rights. Even when there's no one else there, he's still speaking.
Better apply the same reasoning myself, and return every magazine subscription offer mailed to me filled in with a random name and address found in the telephone directory. After all, in a society that values communication highly, the assumption is that they want those subscriptions. If they're unwilling, only they can justifiably say so, claim they didn't order anything, and refuse to pay the bills. Isn't communication wonderful?
Doesn't sound reasonable to me -- it doesn't work well for identity verification, archives are incomplete, and there's no standard practice of posting to usenet or anywhere else to indicate one's preferences regarding spam.
This is why the do not call list maintained by the FTC is reasonable, and why a do not call list maintained by your wacky next door neighbor would not be reasonable.
This is equivalent to asserting that locking your front door constitutes rejection of only those burglars who are insufficiently skilled to pick the lock or insufficiently strong to knock it down.
No, because we're not talking about burglars; we're talking about solicitors. They're not the same. You should probably try to address the argument instead of drawing false analogies.
The assertion that spammers don't know that many of their targets are actively attempt to reject their spew, and are simply using "v!a&r@" and kilobytes or random text for the purpose of drawing human attention (as opposed to for the purpose of bypassing security measures) is preposterous on its face.
No, because filtering is not a security measure. And it does draw human attention.
I note that the government has (quite correctly) imposed regulations on that practice in an attempt to abate a public nuisance.
Actually, having a filter could only be at most rejection of the spam that matches the filter; it lets the rest through, after all, and the recipient designed the filter, and could make it as strict or loose as he wanted. So is it equally unambigious in that respect, in your opinion?
No. Your whole idea is silly. It's the equivalent of receiving real mail and junk mail and tossing it in the shredder if it appears to be junk mail. The sender doesn't know why it is that you don't respond to his advertising, just that you're a tough nut to crack. Natural variation in the junk mail, to find something that might get a response (such as junk mail in the hand addressed envelope) is hardly being sent contrary to notice. There is no notice.
Ditto if you hang up on telemarketing calls when you hear the telltale silence at the beginning of the call, because their system dialed in anticipation of having an operator ready to talk. If they flag you as someone who hangs up on silence does that mean that you've told them not to call, or just that you're impatient and that the caller must work on better timing?
Reasonable notice needs to be clear, and fairly unambigious. Passive rejection doesn't work. It needs to be in some way active and unmistakable. Actually saying 'don't contact me again' would work fine. Or, if in advance, 'don't contact me at all.' But to the outsider the fact that you filter isn't apparent, and doesn't indicate anything much.
As for trespass, trespass occurs whether you know it or not. But in the rare instance of communication, implicit permission to enter for the sake of communication can defeat prima face trespass, based in part upon what it was reasonable for the putative trespasser to know at the time. It won't work in your example because your example is ridiculous. Send him along in the daytime, ringing at the front door, collecting for the Charitable Brotherhood of Jewish Ninjas, and then you'd have something interesting.
I'm not sure, we may even be in agreement on this issue, but it's not quite clear from what you write. I have already "told" anybody who cares that I don't want their advertising, simply by stating in public that I dislike their practice. If this doesn't count, but I have to contact each potential sender individually with a request that they place my address on a do-not-mail list, it's obviously beyond my capacity to prevent most junk mail from reaching me in the first place. I hope you aren't suggesting that spam victims should resort to spamming in order to get their message out?
The trick is that reasonable notice needs to be provided.
Let's use the door to door solicitor scenario:
You live in a town, and everyone in the town knows, from your personal conversations with them, that you do not want solicitors at your door. If the Fuller Brush Man arrives in town one day, doesn't know anyone, never been there before, how can he possibly know that you don't want to see him?
One way of providing notice is to tell the person once they arrive. The other is to provide notice that they really are or at least reasonably ought to, be aware of. A sign that said 'no solicitors' placed by your door would suffice. A sign that said that, but was down in the basement, would not suffice.
Reasonable advance notice on the net is a difficult thing, technically. As it happens, the same is true for phones. Thus, the government created a DNC list, and made a law saying that it counts as a reasonable form of notice.
Something similar might be possible for spam. While it might not be as effective, remember that it's not as though any other proposed legislation seems like it would be more effective. Enforcement is always going to be difficult, regardless of how much or little is subject to it.
What I object to is advertising being sent to unwilling recipients who have neither opted in nor opted out, but of course neither their ISP, the sender nor some court of law can determine in advance whether they are unwilling.
Bingo. Which is why, in a society that values communication highly, the assumption is that they're willing. If they're unwilling, only they can justifiably say so.
I do not see anywhere in this document a guarantee of an audience
There is certainly no such guarantee. It's up to each listener whether they want to listen.
nor any support for the notion that the audience should be forced to subsidize that speech
No one is forced, but they are assumed to want to do so by default, unless they affirmatively reverse that assumption (or some other circumstance reverses it). Thus, being receptive to communications by some medium is consent to such communications.
So if you have email, you're implicitly authorizing the world to send you email. It's up to you to tell people not to. So there's no right to barge in -- there is permission to barge in.
You seem to be arguing that spammers have the right to send me their crap, but I don't have the right to easily get rid of it. I can't agree with that.
Oh no, that's absolutely not what I'm saying.
I'm saying that they have a right to send their crap, only if their crap is not misleading or relates to unlawful activity, and only where the recipient has not provided reasonable notice to them (either in advance or after the fact) to not send spam after the receipt of the notice.
Recipients can get rid of anything they like, using any method they like. But it's inappropriate for the government to decide for you what they want to get rid of, and what they'll pass on to you.
This is how it works with junk mail, telemarketing, etc. -- it can be sent, and unless there's something bad about the specific message (e.g. it's fraudulent), it's within the sender's rights, but the recipient can say no, and having done so, may be able to get aid from the government in enforcing that no.
My apologies, I meant to say "televised tobacco ads."
Yes, but 1) that's unique to radio and TV because they're media that are subject to regulation more than any other (print tobacco ads are common), and 2) it's not a very solidly tested law, and if it were challenged, I suspect it would fall. It probably won't be challenged, since it would be a PR fiasco for the tobacco industry, but I think they could do it if they tried. It's only held up because no one has tried for over thirty years.
If they have the right to send me their spam, I should have the right - and more importantly, the ability - to ignore it.
Absolutely. But this doesn't necessarily stretch so far as to mean that the spammers have to take steps to help you, which is what standard headers would be. Certainly telemarketing calls, tv ads, etc. don't have anything of the sort. As long as they aren't deceptive about what they are, they don't have to go further, I think.
The post office has Form 1500, and the FTC has the Do Not Call Registry. Where is the comparable method for stopping spam?
The DNC list didn't exist a few years ago. We may yet see one for spam, and I don't have a serious problem with it.
if something I do is legal, but by doing so I am inevtably doing something ilegal. Then the ilegal part can be ignored.
Nope. You've got that backwards.
Thus, if spam is legal, but fraud is illegal, then fraudulent spam is illegal. Remove the fraud, and it's legal again. Remove the spam, and fraud remains illegal.
Downloading 300 messages over a modem, and then eye trough them all to see if there was any "real" mail in there is supposed to be equal to putting up a "no adds" note on my front door? or tossing away some store offers?
The latter. If you don't provide reasonable notice to the sender, they have no idea that you don't want ads. They may realize that their ads are ineffective, but they won't know why.
Thus, getting through spam filters seems okay to me, because there are no outward signs of spam filters, and the use of filtering is too passive to indicate reasonable notice. For example, let's say that whenever a religious solicitor comes to your door, you listen politely and only shut the door when he leaves. You don't provide any response at all to them, either positive or negative. But in fact, you aren't paying attention to them; you're imagining what they look like naked. Outwardly, you're just standing there -- that's not enough for someone to understand that they shouldn't come back. You're also not responding positively, but that could just mean that they need to come back with a fine tuned message, and maybe you will in the future.
The point is that total outward passivity doesn't inform others of anything. You need to do something affirmative.
Also the use of fake header data, zombie machines, etc. would tend to make the conduct illegal, whether it was spam or not.
So I'm not supporting ads for fake drugs or spanish prisoner scams, in any medium. But ads for real, legitimate drugs or business opportunities would be okay, again regardless of medium.
There is a presumption. It doesn't mean that free speech overrides property rights, but rather that they are aligned in that the property owner automatically implicitly consents to the speech in his domain, and must undertake some act to revoke that automatic implicit consent.
If you agree to accept spam, by virtue of having an email account, it's hardly being forced on you. And unless you disagree, you agree.
To be honest, hacker magazines are not exactly known for getting things right. I recall reading one in my misspent youth that had an article that basically was fringe nonsense about how federal laws 'didn't count' or something, which isn't true, and at any rate, wouldn't turn out to be true in practice.
The law you're looking for is 17 USC 106(1). It prohibits the reproduction of copyrighted works withouth authorization, unless there is an applicable exception.
Also, MPAA may be involved with the TV industry. Certainly their members are (e.g. Disney and ABC, Paramount and UPN, 20th Century Fox and Fox, Warner Brothers and WB, Universal and NBC) and their parent companies (Viacom owns Paramount and CBS). Not just at the network level either, but also with regards to production companies.
So you're saying that if I kill someone, and successfully employ an insanity defense, that insanity is a right?
No. Fair use is merely a defense to copyright infringement. If a use is fair, then it is not infringing. The mere fact that it is not infringing does not mean that you have a right to do it. I could write original libels, or take pictures that were original child pornography, or write reports of what I learned via industrial espionage, and they would not be infringing, but I still wouldn't be able to do it.
Copyright is a negative right, that is, a right to prevent others from doing things. It's not a right to do those things, however. And accordingly, a defense to infringement is merely a claim that there is no right of the copyright holder, founded in copyright, to prevent a defendant from doing a particular thing. It still isn't enough to get to whether the defendant can do it at all.
Nonsense; it is a defense of a private property boundary. What else could it possibly be?
It's already in the boundary when it's filtered. Too late man, too late. Plus, I don't think filtering is enough to reverse the presumption in favor of spam.
The right you're looking for is the right of free speech; it's the same right that the creators of the show rely upon to record it the first time, even before broadcast.
Unfortunately we still have Supreme Court opinions contradicting the circuits' fax cases. Honestly, I think the circuits decided wrongly. I don't think they settled anything.
But unless they're coordinating, it's wrong to hold one spammer responsible for what others do. It's not as though they can control each other, or even are aware. If tomorrow, one million spammers each send you one spam, then it sucks to be you, but it's just bad luck, really.
As for me, I never said that there was anything wrong with filtering. Only that a law banning all spam would be unconstitutional.
I use the filter built into Thunderbird. Difficult for me to provide numbers though, since I empty the junk periodically and don't get much traffic to begin with.
Slashdot Mirror
Now you have definitely lost me (and I even have to quote myself for context). How is my desire to opt in to business correspondance I want, rather than opt out from correspondance I don't want, a threat to free speech? I'm not calling the cops to stop anybody from talking, I'm simply refusing to do business with them if they insist on treating me like a credit card with two eyeballs and no brain. Their speech is free from government interference; they just can't count on selling anything to me if they say things I don't like. I'm not the government; I have no obligations to them.
Perhaps I didn't quite understand you there.
What I thought you were saying was that commercial speech should be opt in, rather than opt out, and that this should be enforced by the government. So for example, people would be unable to send you advertising in the mail unless you expressly told them that you wanted it. Unsolicited ads would be met with legal action by private parties or the government on its own behalf.
However, now it sounds as though you merely will refuse to do business with people that send unsolicited junk mail to you, and that's the end of it.
If the latter, then I have no problem with it. I have a similar policy, in fact.
How could a filter be "abused"?
If it's a public blacklist, and it's erroneous, there may be some risk of libel or perhaps some other business torts. These might require actively and maliciously adding entries to the list, but that's why I said 'abused;' it has those connotations.
However, if the joint message sent to me by all spammers and their lawyers is "We have the government on our side, we will bury you in ads unless you give in to our demands, and there is absolutely nothing you can do to stop us short of resorting to violence", then I probably will resort to violence, even if it's illegal.
But there is something you can do to stop them: the opt out.
Remember, the way the first amendment protections shake out, the only protected spam is that which isn't misleading or relates to unlawful activity, and even then only so long as people don't opt out to it in some fashion (either globally or to specific spammers). The protected subset of spam hardly seems to be flooding our mailboxes, and the sorts of people who send it likely would adhere to opt outs in order to continue to protect themselves.
The other sort of spam remains a problem, but so far I haven't seen good legal solutions that would reduce it. I mean, a lot of these people are committing fraud already, and that's illegal already, whatever means are employed. Stopping them can either be done basically with our existing laws, or won't be able to be helped with a ban on spam generally. (And such a ban would harm the more decent spammers as previously described)
Filtering seems to me to be the best solution at a practical level then, and also to avoid unduly trampling on the rights of spammers with good practices, when such trampling won't stop the spammers with bad practices.
Downloading necessarily involves reproduction, which is one of the exclusive rights of the copyright holder, at 106(1).
When you download, you direct your computer to write information into one memory or another (e.g. RAM, HD, etc.). Due to the definition of a copy in section 101, these are material objects, and the downloading process results in fixing a work into them. Thus, they become new copies. And fixing works into tangible media so that they become new copies is reproduction and it's prohibited.
You're probably getting confused by the vernacular definition of a copy, e.g. that a file on a computer is a copy. Really it's the RAM, or the hard drive, etc. that is the copy; the file is just an instance of the intangible creative work.
I'm not really sure where you're getting the uploader part, though. It seems pretty obvious that the downloader is responsible for his own downloads. No one is forcing his computer to do it, after all. There've been some cases along these lines. You may want to read this case, which briefly runs through the analysis with regards to the downloading of web pages as a part of the process of viewing them. The court concludes that it can be an infringement on the part of the viewer. It also cites to other on-point cases if you want to follow up.
If you're just singing along in that situation, it's not making a copy to begin with. Nor is it a public performance, unless you're pretty open about who you shower with. So there's no occassion to worry about fair use yet anyway.
Why would I want any other solution, if it still requires opt-out (besides the do-not-call list, which I don't want either)?
Because it's more important that there be free speech than that the world suit any one person's individual preferences, and hopefully you realize this.
I didn't suggest violating the law. "Killing" a spammer doesn't necessarily equate shortening his biological life, just removing his ability to spam, say by public blacklisting. Usenet "kill files" were invented long ago, and they aren't lethal weapons.
I don't have a problem with what are essentially filters. Of course, you should still ensure that they're not abused.
Then don't invite people to commit mail fraud by leaving them no other option to make their point.
Offering people magazine subscriptions is not an invitation to mail fraud. Revenge isn't really acceptable in civilized society; we should not try to make it more so, either. It's always uncalled for. Particularly when the revenge is far out of proportion to an imagined harm.
Just to cover things from the US side, over here, reproducing works is illegal (and tends to occur in the course of downloading), and distribution is also illegal (and tends to occur in the course of uploading or sharing). Some other things are also illegal. And there are various exceptions and so forth.
It's important to note that the act ultimately carried out by a human being is what's illegal; the actual copies involved are not, though they may have been made unlawfully.
Perhaps things are different in your neck of the woods?
"Sharing" is illegal in the US too, I am not sure about downloading.
Downloading copyrighted works without authorization or an applicable exception is illegal in the US per 17 USC 501 and 106(1).
In the US, ISPs may be protected from liability due to their users' actions by 17 USC 512 and 47 USC 230. Of course, these don't apply to everything, so it depends on the actions involved.
No, you continue to misunderstand me, perhaps deliberately.
Here is what I am saying:
Spammers have a right to send spam without being prevented by doing this by the government.
However, if recipients provide reasonable notice to spammers to stop sending them spam, then perhaps the government can step in on behalf of the notifying recipients.
Filtering is not reasonable notice, however. Notice must be in some way affirmative and externally visible, e.g. saying that you don't want spam. Filtering is merely ignoring spam, which isn't sufficient.
Spammers' right to send spam in the absence of notice in no way impairs recipients from filtering spam as they please.
And despite your persistant nonsense, mail filters aren't a security measure against mere speech. Speaking is not even vaguely similar to lockpicking or the like, and cannot be analogized to it.
A do-not-mail list works best when the marketer actually wants to respect my wish to be left alone. If I can't trust the marketer to do that, but I have to call for the government to "enforce" my wish against someone desperately trying various legal tricks to be able to mail me anyway, I clearly can't trust that person with even having my address in the first place. A law then requiring me to still submit my address to that scumbag in order to invoke my "rights" is worse than useless, and I will not participate in that legal farce anymore, but rely entirely on physical means of protection instead, such as refusing him access to my mail server, or even more drastic measures (of course first checking that the marketer isn't found on my do-not-kill list).
Well, this is precisely how the do not call lists work -- telemarketers consult their list of numbers against a master list of numbers that have been entered onto the list by the people the numbers roughly correspond to. The telemarketers know which numbers not to call, and don't. If they do, remedies are available against them.
I'm a little curious as to what other solutions you can think of which still require an opt out.
Plus, it's not as though you have to opt out. You can always just passively reject communications, e.g. via filtering. Of course, more drastic measures could justifiably get you into trouble. Disliking spam is no excuse for criminal or tortious behavior.
Sending unwanted advertising is not communication any more than mailing an unwritten brick is; it takes at least two voluntary parties to communicate.
Communication can certainly be one way. The guy on the corner holding up the sign about the end of the world is certainly speaking; you aren't required to pay attention for him to exercise his rights. Even when there's no one else there, he's still speaking.
Better apply the same reasoning myself, and return every magazine subscription offer mailed to me filled in with a random name and address found in the telephone directory. After all, in a society that values communication highly, the assumption is that they want those subscriptions. If they're unwilling, only they can justifiably say so, claim they didn't order anything, and refuse to pay the bills. Isn't communication wonderful?
Yes, but mail fraud isn't.
Doesn't sound reasonable to me -- it doesn't work well for identity verification, archives are incomplete, and there's no standard practice of posting to usenet or anywhere else to indicate one's preferences regarding spam.
This is why the do not call list maintained by the FTC is reasonable, and why a do not call list maintained by your wacky next door neighbor would not be reasonable.
The sign by the door at least stands out.
This is equivalent to asserting that locking your front door constitutes rejection of only those burglars who are insufficiently skilled to pick the lock or insufficiently strong to knock it down.
No, because we're not talking about burglars; we're talking about solicitors. They're not the same. You should probably try to address the argument instead of drawing false analogies.
The assertion that spammers don't know that many of their targets are actively attempt to reject their spew, and are simply using "v!a&r@" and kilobytes or random text for the purpose of drawing human attention (as opposed to for the purpose of bypassing security measures) is preposterous on its face.
No, because filtering is not a security measure. And it does draw human attention.
I note that the government has (quite correctly) imposed regulations on that practice in an attempt to abate a public nuisance.
I hadn't heard that. Cite the regulation, please.
Actually, having a filter could only be at most rejection of the spam that matches the filter; it lets the rest through, after all, and the recipient designed the filter, and could make it as strict or loose as he wanted. So is it equally unambigious in that respect, in your opinion?
No. Your whole idea is silly. It's the equivalent of receiving real mail and junk mail and tossing it in the shredder if it appears to be junk mail. The sender doesn't know why it is that you don't respond to his advertising, just that you're a tough nut to crack. Natural variation in the junk mail, to find something that might get a response (such as junk mail in the hand addressed envelope) is hardly being sent contrary to notice. There is no notice.
Ditto if you hang up on telemarketing calls when you hear the telltale silence at the beginning of the call, because their system dialed in anticipation of having an operator ready to talk. If they flag you as someone who hangs up on silence does that mean that you've told them not to call, or just that you're impatient and that the caller must work on better timing?
Reasonable notice needs to be clear, and fairly unambigious. Passive rejection doesn't work. It needs to be in some way active and unmistakable. Actually saying 'don't contact me again' would work fine. Or, if in advance, 'don't contact me at all.' But to the outsider the fact that you filter isn't apparent, and doesn't indicate anything much.
As for trespass, trespass occurs whether you know it or not. But in the rare instance of communication, implicit permission to enter for the sake of communication can defeat prima face trespass, based in part upon what it was reasonable for the putative trespasser to know at the time. It won't work in your example because your example is ridiculous. Send him along in the daytime, ringing at the front door, collecting for the Charitable Brotherhood of Jewish Ninjas, and then you'd have something interesting.
I hardly see how one person being upset translates into the country going to hell.
However, I noticed that you said [t]he law does not concern itself with trivialities. This reminds me of a funny limerick:
There once was a lawyer named Rex,
Who was deficient in matters of sex,
Arraigned for exposure,
He said with composure,
'De minimis non curat lex.'
I'm not sure, we may even be in agreement on this issue, but it's not quite clear from what you write. I have already "told" anybody who cares that I don't want their advertising, simply by stating in public that I dislike their practice. If this doesn't count, but I have to contact each potential sender individually with a request that they place my address on a do-not-mail list, it's obviously beyond my capacity to prevent most junk mail from reaching me in the first place. I hope you aren't suggesting that spam victims should resort to spamming in order to get their message out?
The trick is that reasonable notice needs to be provided.
Let's use the door to door solicitor scenario:
You live in a town, and everyone in the town knows, from your personal conversations with them, that you do not want solicitors at your door. If the Fuller Brush Man arrives in town one day, doesn't know anyone, never been there before, how can he possibly know that you don't want to see him?
One way of providing notice is to tell the person once they arrive. The other is to provide notice that they really are or at least reasonably ought to, be aware of. A sign that said 'no solicitors' placed by your door would suffice. A sign that said that, but was down in the basement, would not suffice.
Reasonable advance notice on the net is a difficult thing, technically. As it happens, the same is true for phones. Thus, the government created a DNC list, and made a law saying that it counts as a reasonable form of notice.
Something similar might be possible for spam. While it might not be as effective, remember that it's not as though any other proposed legislation seems like it would be more effective. Enforcement is always going to be difficult, regardless of how much or little is subject to it.
What I object to is advertising being sent to unwilling recipients who have neither opted in nor opted out, but of course neither their ISP, the sender nor some court of law can determine in advance whether they are unwilling.
Bingo. Which is why, in a society that values communication highly, the assumption is that they're willing. If they're unwilling, only they can justifiably say so.
I do not see anywhere in this document a guarantee of an audience
There is certainly no such guarantee. It's up to each listener whether they want to listen.
nor any support for the notion that the audience should be forced to subsidize that speech
No one is forced, but they are assumed to want to do so by default, unless they affirmatively reverse that assumption (or some other circumstance reverses it). Thus, being receptive to communications by some medium is consent to such communications.
So if you have email, you're implicitly authorizing the world to send you email. It's up to you to tell people not to. So there's no right to barge in -- there is permission to barge in.
You seem to be arguing that spammers have the right to send me their crap, but I don't have the right to easily get rid of it. I can't agree with that.
Oh no, that's absolutely not what I'm saying.
I'm saying that they have a right to send their crap, only if their crap is not misleading or relates to unlawful activity, and only where the recipient has not provided reasonable notice to them (either in advance or after the fact) to not send spam after the receipt of the notice.
Recipients can get rid of anything they like, using any method they like. But it's inappropriate for the government to decide for you what they want to get rid of, and what they'll pass on to you.
This is how it works with junk mail, telemarketing, etc. -- it can be sent, and unless there's something bad about the specific message (e.g. it's fraudulent), it's within the sender's rights, but the recipient can say no, and having done so, may be able to get aid from the government in enforcing that no.
My apologies, I meant to say "televised tobacco ads."
Yes, but 1) that's unique to radio and TV because they're media that are subject to regulation more than any other (print tobacco ads are common), and 2) it's not a very solidly tested law, and if it were challenged, I suspect it would fall. It probably won't be challenged, since it would be a PR fiasco for the tobacco industry, but I think they could do it if they tried. It's only held up because no one has tried for over thirty years.
If they have the right to send me their spam, I should have the right - and more importantly, the ability - to ignore it.
Absolutely. But this doesn't necessarily stretch so far as to mean that the spammers have to take steps to help you, which is what standard headers would be. Certainly telemarketing calls, tv ads, etc. don't have anything of the sort. As long as they aren't deceptive about what they are, they don't have to go further, I think.
The post office has Form 1500, and the FTC has the Do Not Call Registry. Where is the comparable method for stopping spam?
The DNC list didn't exist a few years ago. We may yet see one for spam, and I don't have a serious problem with it.
if something I do is legal, but by doing so I am inevtably doing something ilegal.
Then the ilegal part can be ignored.
Nope. You've got that backwards.
Thus, if spam is legal, but fraud is illegal, then fraudulent spam is illegal. Remove the fraud, and it's legal again. Remove the spam, and fraud remains illegal.
Downloading 300 messages over a modem, and then eye trough them all to see if there was any "real" mail in there is supposed to be equal to putting up a "no adds" note on my front door? or tossing away some store offers?
The latter. If you don't provide reasonable notice to the sender, they have no idea that you don't want ads. They may realize that their ads are ineffective, but they won't know why.
Thus, getting through spam filters seems okay to me, because there are no outward signs of spam filters, and the use of filtering is too passive to indicate reasonable notice. For example, let's say that whenever a religious solicitor comes to your door, you listen politely and only shut the door when he leaves. You don't provide any response at all to them, either positive or negative. But in fact, you aren't paying attention to them; you're imagining what they look like naked. Outwardly, you're just standing there -- that's not enough for someone to understand that they shouldn't come back. You're also not responding positively, but that could just mean that they need to come back with a fine tuned message, and maybe you will in the future.
The point is that total outward passivity doesn't inform others of anything. You need to do something affirmative.
Also the use of fake header data, zombie machines, etc. would tend to make the conduct illegal, whether it was spam or not.
So I'm not supporting ads for fake drugs or spanish prisoner scams, in any medium. But ads for real, legitimate drugs or business opportunities would be okay, again regardless of medium.
There is a presumption. It doesn't mean that free speech overrides property rights, but rather that they are aligned in that the property owner automatically implicitly consents to the speech in his domain, and must undertake some act to revoke that automatic implicit consent.
If you agree to accept spam, by virtue of having an email account, it's hardly being forced on you. And unless you disagree, you agree.
To be honest, hacker magazines are not exactly known for getting things right. I recall reading one in my misspent youth that had an article that basically was fringe nonsense about how federal laws 'didn't count' or something, which isn't true, and at any rate, wouldn't turn out to be true in practice.
The law you're looking for is 17 USC 106(1). It prohibits the reproduction of copyrighted works withouth authorization, unless there is an applicable exception.
Also, MPAA may be involved with the TV industry. Certainly their members are (e.g. Disney and ABC, Paramount and UPN, 20th Century Fox and Fox, Warner Brothers and WB, Universal and NBC) and their parent companies (Viacom owns Paramount and CBS). Not just at the network level either, but also with regards to production companies.
So you're saying that if I kill someone, and successfully employ an insanity defense, that insanity is a right?
No. Fair use is merely a defense to copyright infringement. If a use is fair, then it is not infringing. The mere fact that it is not infringing does not mean that you have a right to do it. I could write original libels, or take pictures that were original child pornography, or write reports of what I learned via industrial espionage, and they would not be infringing, but I still wouldn't be able to do it.
Copyright is a negative right, that is, a right to prevent others from doing things. It's not a right to do those things, however. And accordingly, a defense to infringement is merely a claim that there is no right of the copyright holder, founded in copyright, to prevent a defendant from doing a particular thing. It still isn't enough to get to whether the defendant can do it at all.
then, yes, she broke the law
Which law?
Nonsense; it is a defense of a private property boundary. What else could it possibly be?
It's already in the boundary when it's filtered. Too late man, too late. Plus, I don't think filtering is enough to reverse the presumption in favor of spam.
I don't see that filtering is relevant at all.
Fair use is a defense, not a right.
The right you're looking for is the right of free speech; it's the same right that the creators of the show rely upon to record it the first time, even before broadcast.
Unfortunately we still have Supreme Court opinions contradicting the circuits' fax cases. Honestly, I think the circuits decided wrongly. I don't think they settled anything.
But unless they're coordinating, it's wrong to hold one spammer responsible for what others do. It's not as though they can control each other, or even are aware. If tomorrow, one million spammers each send you one spam, then it sucks to be you, but it's just bad luck, really.
As for me, I never said that there was anything wrong with filtering. Only that a law banning all spam would be unconstitutional.
I use the filter built into Thunderbird. Difficult for me to provide numbers though, since I empty the junk periodically and don't get much traffic to begin with.