Regarding your first point, it's also worth noting that the Schenck case where the quote is from is really not good law anymore. The Brandenburg case pretty much has replaced it. The zombie-like tenacity of Schenck, which was never all that good to begin with, just bugs the hell out of me.
which part of "Congress shall make no law" didn't you understand?
Ah, the absolutist approach, favored by such excellent jurists as J. Douglas. It certainly holds appeal for me. I'm not sure I'm quite ready to embrace it, as I'm still trying to reconcile it with issues such as fraud or libel. But I do try to make my way towards it.
I think you may have forgoten to include your email address in your profile, or in your posts defending spam as free speech. Please post it so you can experience the full benefit of this particular form of "free speech" - you might then understand how ludicrous your position really is.
I said that I think that the first amendment offers protection to spammers. I didn't say I wanted spam. I get enough already, and I don't like it. Indeed, I probably hate ads -- all ads -- more than most people here (I filter/. banner ads out for starters, and would gladly filter them from everywhere, even the real world, if I could).
But this is the sort of thing that separates the men from the boys in the free speech arena; willingness to defend speech that's repulsive to you. I'm Jewish, and I'd defend the right of Nazis to speak. I hate ads, and I defend the rights of advertisers. It's the same thing. I understand that not everyone can do this, but that isn't really a good thing.
Its not that others think you shouldn't be heard, but they think you are a turd.
Freedom of speech does not confer a right to use other people's property to send your message.
So you're saying that I cannot call you on your landline because you own your telephone? Or that I cannot write you a letter because you own the mail slot in your door? Don't be silly.
Being able to receive communications is implicit permission for people to send them to you. If you have an email account, it begs for email to be sent. Hell, you're listing it right along with your post!
You can -- to some degree -- remove yourself from that, but it takes affirmative action to do so, and reasonable notice provided to those that you're trying to deny. Such as the 'no spam' in your address there; I think that would work, since messages to the actual address, if collected by redacting it as provided there, indicate that the sender knew or should've known of your refusal.
Your post is rather shrill, so I'll keep this brief.
In this location, I am presumed to have specifically sought to NOT have others speak at me without an invitation!
No. You have a right to reject speech so that it doesn't enter your home, and you may even be able to carry that as far as being able to ensure that it isn't sent to begin with. But it requires affirmative action to do this.
The Supreme Court, in Bolger (cited elsewhere in the thread) said that unless the recipient rejected the speech, the sender had a right to send it, even if it was unwanted.
So you're backwards on that.
Read the Rowan case, and then read the Bolger case. They're pretty important, and I think they'll set you right.
DEATH.... that's the only answer in this case.
Or so I thought. Honestly, how people can claim to support free speech, and then to say something like that is really beyond me.
Thanks. For the record, I am against advertising in all forms, even to the level of particularly noticable packaging or logos. I'm just also for free speech, so I find myself having to put up with the fact that advertisements, much as I hate them, shouldn't be banned just for that reason.
I dream of the day that augmented reality equipment becomes available. I'll be able to filter out everything from how I perceive reality. Billboards will appear to have paintings on them, ugly clothing with prominent designer logos will instead have jokes, ad pages in the newspaper will be crossword puzzles, that sort of thing.
Actually I generally don't mention it unless someone asks. The.sig is for covering my ass; a lot of lawyers use similar things, and since I often post regarding legal issues, it's more convenient to have it appended automatically.
at the end of the day, spam requires the use of MY resources, and I have to explicitly give permission to use those resources.
Door to door solicitors have to go on your land, and use up your time for you to listen or tell them to leave. Telemarketers tie up your phone and use up your time until you hang up on them. Junk mail fills up your mailbox, perhaps impairing efficient mail delivery depending on volume, and requires that you sort through it and dispose of it, which costs time and depending again on volume and the specifics of your trash service, money.
So there's nothing unusual about spam.
And the rule is not that people cannot communicate without explicit permission. Just the opposite; people can communicate, even where it uses others' resources to some extent, unless there is explicit rejection.
This is why people can try to sell things door to door until you put up a 'no solicitors' sign. And why people have a right to send you junk mail unless you specifically have the Post Office stop it. And why people can telemarket to you until you get on a DNC list.
So for spam, until you provide a spammer with reasonable notice to not spam you further, you're considered to be allowing it.
Yes there is.
How is it legally significant? All communication incurs costs to send and to receive. Costs vary between different media, but only more or less the same for both parties.
If you can prove that there is a cost to you that you cannot avoid when they send the spam (getting junk mail isn't any appreciable cost to you in comparison to the cost to send the mail) then they do not have the right to send it.
No, I don't believe that's true. Do you have a cite?
They have no right to do anything with my time or property that I do not specifically grant them.
That's not quite how it works; rather the general rule is that you implicitly grant them permission. You need to affirmatively retract it to get to the point you want to be at.
Note that I do not care what the law says about this: fuck the law
Heh. And yet, were it not for people vigorously defending free speech, you might have gotten in trouble for saying 'fuck.' (See the Cohen v. California case, commonly known as the 'fuck the draft' case) So I wouldn't dismiss the law quite so out of hand.
I do know how crucial free speech is, despite your patronizing assertion that my belief/behavior exhibits otherwise. Our government does NOT understand what it is, otherwise the FCC wouldn't exist, and Howard Stern would have said cunt fuck shit so many times on television and radio that we would all be yawning, and complainants about erotic embraces on Angel would be dismissed without wasting a single dollar of tax-payer money, and the anti-flag burning idiots would be flgged at the stocks just for being stupid and missing the point utterly.
You had me until the end; then you justified the patronizing assertion again.
Do you really think that Thomas Jefferson would have tolerated spam?
Given that he was a man of many faults, I don't think it matters much. A lot of the framers had big ideas that they couldn't live up to. The best thing we can do is to strive to do better.
The issue is about the clearly fraudulent and illegal means which spammers use to communicate. Compromised systems, spyware, and misconfigured relays or proxies are the tools of the spammer trade.
I'm not defending any of that. Fraud is illegal regardless of medium. Ditto hacking and other forms of intrusion.
What I'm defending is spam that is not deceptive or fraudulent and which is not sent via such bad practices as listed above. When people talk about getting rid of spam, they're including this kind, and that's when they go too far.
For example, televised alcohol ads are banned
No they're not. I don't know if you watch any sports, but I assure you that you'll see a lot of beer ads if you do.
certain types of ads are prohibited near schools
IIRC I think these prohibitions tend to get struck down. I know the anti-tobacco one in MA was like this, and it did. But I'd want to look into the subject to make sure of the current rulings.
If spammers would just stick to a set of reasonable rules - like sending mail from a valid address, actually removing your address when you request it, using a standard header to indicate that the mail is a mass-mailing - I'd have no problem with it, because I could easily filter it out. This is what the spammers in the FA got nailed for - "...using false Internet addresses to send mass e-mail ads." I have no problem with this.
I think that spammers that did the above would be on solid legal footing, and they are the ones that I'm defending here. Also I don't think that standard headers would need to be required; there's certainly no requirement that junk mail make itself obvious, and we all seem to get by okay.
With spam, however, I get several hundred messages a day, making up over 90% of all my email. This is completely unreasonable.
Filtering and pressing delete is not that hard. Plus of course, unless that spam all comes from one or a couple of sources, so what? There's nothing illegal about a thousand people sending you a message each if they're not acting in concert, and possibly not even if they are.
How do you plan to trace a spam message to a particular spammer and actually make the opt-out stick?
If there were a flat-out ban on spam, how would you enforce it, since you'd need to be able to prove that particular spam came from particular spammers.
It's not as though I'm making things difficult. Even the anti-speech crowd here doesn't have a good answer. Any solution for one would work for the other.
Of course, I would caution you against some solutions for that specific problem. Many people seem to like the Internet being a medium by which anonymous or semi-anonymous speech is possible, where it's difficult to track people, etc. It may very well be that the unusual levels of practical freedom around here that so many enjoy can't be maintained in conjunction with meaningful litigation involving spammers. Is spam such a big deal that we might want to sacrifice the rest?
Personally, I think that filtering on the receiving end is good enough. While I do think that fraudulent and deceptive spam, and probably even spam sent after meaningful opt outs should be curtailed, I'd rather continue to put up with them if the only way to deal with it was a more sanitized Internet.
Much like junk faxes, e-mail spam places most of the burden and cost of disposing of spam onto the receiver.
The burden and cost of disposing of junk mail falls on the recipient too. And of telemarketing calls. And of slamming the door in people's faces.
Like I said, costs are not legally relevant. Every medium for communication incurs costs on senders and recipients, and they naturally vary according to medium. It doesn't matter, though. If you're going to employ such a medium, you should know that it won't be all sweetness and light.
Just because my front door faces the street doesn't mean anyone can come up to my door and try to sell me something or even try to just TELL me something. I can put up signs that say "No tresspassing" or "No solicitation" and because I OWN that property, you have to have permission to come onto my property or you are tresspassing.
Exactly my point! You can do this, but until you provide such effective notice, you are considered to have implicitly allowed people to come up to your door. You have to affirmatively reject communications, and the government cannot choose to do so for you (because after all, maybe you like having people come to your door).
So all you need to do is to do this with spam, and you're all set! I never said that spammers could continue to spam in light of such measures. I said that they couldn't be barred from spamming generally, i.e. in the absence of such things.
If I give someone my e-mail address, that, and ONLY that gives that person permission to send me e-mail. If I revoke that permission, that person should no longer be able to send me e-mail. Just because my mail account is open to anyone doesn't mean I have to tolerate unsolicited marketing.
Sorry, but that's not how society works. If you have a phone number, anyone can call it, unless you say otherwise. Ditto for other communications methods. You basically admitted this yourself with regards to the door. Sorry if you don't like it, but that's how it is.
The difference is that the junk mailers paid to have their crap sent. A huge amount of the Postal Service's money is generated by junk mail. If it disappeared tomorrow, the Postal Service would be in for some pretty dire straits.
The point is that sending a physical object has a direct economic impact on the sender, and much less so on that of the sendee. They paid for the paper, the printing, and the stamp... And don't be fooled, it cots tons of money to mass mail, even for a non-profit orginazation, which gets a substantial cut on postage. The recipiant has to only look at it, decide wether or not it's worth reading, then shit-can it.
But this has no legal signifcance. Free speech is free speech regardless of cost, and remember, both speaker and listener ALWAYS incur costs associated with speech in ALL forms, if only in time.
Frankly, I think it's easier to have email automatically filtered, or to delete it with a single keypress, then it is to have to manually sort through junk mail, walk to the trash can, and throw it out. And if the latter, greater burden, is one that the Supreme Court thinks is okay, why not the lesser?
Then there's the trouble about trying to notify spammers and whatnot... Okay, so you click on the "do not receive further spam" link... Perhaps they're obligated to stop sending mail (or not), but that dosen't stop them from making a buck off of you. That little click gave them a host of valuable information that they can turn around and use directly, or sell. They learned that someone reads mail sent to that address, and by logical deduction, they learned that the person that read it is stupid enough to read (more) spam. They learn what kind of spam people respond to (or at least the ones stupid enough to read it), they learn when they read their mail, etc. I'd guess that an active e-mail address is worth lots and lots more than a dead one, or one that never responds. Perhaps you do tell a spammer not to spam you, but in the course of doing so, you've got more spam from two other spammers. Like that's going to go somewhere.
While no legislation within a country will ever help against spam sent from abroad, please read the details of the Rowan case cited previously for your answer to this. It's not a big deal for those that the law can reach. And even outright bans won't stop those that it can't, so they would be inappropriate.
Sure, but it also isn't inevitable with spam, so what's your point?
The difference (the senders of junk snailmail pay for the service they use; the senders of spam impose this cost on their targets) is a matter of common knowledge.
Firstly, receiving any communication incurs a cost on the recipient: junk mail has to be sorted through and thrown away. Telemarketing calls have to be hung up on. Door to door solicitors involve getting up, opening the door, telling them to go to hell, and slamming it again. There's always a cost in time, and sometimes in resources.
Likewise, there is always a cost to the sender: junk mail needs postage; telemarketing needs phones, phone service, and people to man them; spam requires computers and bandwidth.
These costs may vary, but the mere existence of costs is legally insignificant. Recall the Supreme Court's ruling in Bolger v. Youngs Drug Products, 463 U.S. 60 (1983), where they upheld the right of junk mailers to send junk mail, and said that while it imposed a cost on recipients, "the 'short, though regular, journey from mail box to trash can . . . is an acceptable burden, at least so far as the Constitution is concerned.'"
I would argue that the same holds true with regards to spam. It's not difficult to filter, nor to delete. It can be automated, or done at the press of a button. It's easier than with junk mail.
It is also a matter of common knowledge that spammers routinely sabotage attempts to reject their communications.
How so? I've never yet seen a spam that resisted attempts to delete it.
Now, if the spam is that subset of spam which is deceptive or fraudulent, then of course it is not protected by the first amendment. But truthful and forthright spam that nevertheless can get through filters seems to fall within the shield of free speech. (c.f. junk mail sent in hand-addressed envelopes, which at first glance would not appear to be junk mail, but isn't really deceptive)
Solicited mailings are, by definition, not spam.
I'm talking about people who want unsolicted spam. It could only be solicited if they undertook affirmative action to get it. But if it shows up out of the blue, without invitation, it still might be welcomed. In a society that values free communication, this is the default.
The law need only treat e-mail filtering as it treats other form of comptuter security, and the problem is solved.
Actually, it would be disasterous.
This statement can thus only be interperpreted as willful trolling
I never troll. I'm stating my honest belief and my opinion of the law based on careful consideration and drawing upon my legal education, having been checked against others of even more significant stature.
Don't tell me that just because you disagree with me, you think that I shouldn't be heard?
You're not a lawyer are you? Well, I'm not either.
Actually, I am a lawyer. I'm licensed to practice in Massachusetts. But I'm not your lawyer, we don't have an attorney-client relationship, and this isn't legal advice. For those things, see a lawyer licensed to practice in your jurisdiction who is willing to enter into such a relationship with you.
You not only have the right to refuse any mail, but you have the right to prevent any mail from being sent to you in the first place. The Supreme Court said so.
Note that I said 'strong right,' not 'absolute right.'
The case you're probably thinking of is Rowan v. US Post Office Dept., 397 US 728 (1970). And indeed, the Court did find in Rowan that it didn't violate the junk mailer's first amendment right for the individual recipients to, via the Post Office, prevent further junk mail from specific senders from being sent.
The key is, that it took action by specific recipients against specific senders. This is important, because next we see Bolger v. Young's Drug Products, 463 US 60 (1983), in which the Court upheld the first amendment rights of junk mailers. There, the government had stepped in and banned junk mail on its own initative, because recipients might have been offended. In that case, the Court decided that it was up to the recipients to decide for themselves whether or not they were offended, and that the government could not act to protect people who might be offended since such recipients could easily avoid reading the junk mail and just throw it out. The burden of not reading things and throwing things out was too low to justify government intervention.
So sure -- if you notify a spammer after the fact, or in advance, by some reasonable means, that they should not send further spam to you, then I think that it might very well be sufficient for the government to make sure that they don't. (Though I'm wary of this, since I'd rather err on the side of more speech than less)
But the onus is on you, the individual recipient. If you don't tell people you don't want something, don't fault them for sending it. And just because you don't want something, don't stand in the way of the people who do. (Though I'd have to wonder about who the hell actually wants spam)
I should be able to prevent anyone trying to send me this stuff from connecting to my port 25.
And you can. Turn off your port 25. That'll work.
Otherwise, I suggest telling spammers to not spam you anymore, and to follow up on that with appropriate legal action if they continue.
You're right in that spammers have no right to ensure that you ultimately receive spam. However, they do have a strong right to send it to you. What you do with it is your own affair, however.
There is no legally significant difference between someone sending you a million emails and someone sending you a million pieces of junk mail. In both cases, your ability to receive communiques by the medium is considered implicit permission for the world to send you things. In both cases, you can refuse to accept them, or can throw them away unseen, and with virtually no effort on your part.
While I hate advertising everywhere, it strikes me that people who are opposed to spam to the degree you exhibit not only lack an awareness of how crucial free speech is, even where it disgusts you, but are also amazingly lazy and would prefer that free speech not exist just so that they don't have to press a delete button. That's pretty sad.
Me, I place spam in the same category as the KKK -- it's amazingly distasteful, and I think we'd all be better off without it, but that no one person's decision should be imposed on other people. If someone out there wants spam, then I would be doing them a disservice if I kept them from getting it. If someone out there wants to send messages to people, then were I to ban their message based on its content or it being widely disseminated, then why couldn't that be used against me by someone else?
Free speech means having to tolerate the existence of speech you don't like. No one is making you listen to it, however.
You quote that the law distinguishes between a copy which is tangible, vs. one which is transitory.
No, you're misreading it slightly. No matter what, a copy's not a copy unless it's tangible. The issue you're noting is whether the work is fixed in the tangible medium for more than a period of transitory duration. If it's not, then it's not technically fixed, and you need fixation to have a copy.
So basically I think you're asking whether, because it has to be refreshed every 10 nanoseconds or so, information in RAM is only there for a transitory duration.
I think the problem is 'every.' If the information were only there for a few nanoseconds, your argument would have merit. But what you're trying to do is to get the court to say that you can have information in there for a year and a day by continually refreshing it, but that they'll only treat it as having been there for 10 nanoseconds. I don't think they'd go for this. That would totally fly in the face of any notion of transitoriness by virtue of the cumulative time the information was present.
MAI already pretty much settled the issue, and it's what courts will follow. If you want to challenge it, you have my blessing, but I don't think it'll work. Courts are not computers; they don't get caught up on small details so much as they look at the big picture. People with technical backgrounds, it strikes me, frequently behave as though courts cannot employ common sense, and can be exploited on technicalities. It doesn't really work like that. Some technicalities are important, but leave them to the lawyers to understand what they are, when they'll work, and how to use them. Eventually you get a feel for it.
As for your lobbying proposal, I feel it is too short sighted. Computers have often varied between using volatile and nonvolatile RAM. Core memory, popular in the 60's (and from where we get our term 'core dump' was nonvolatile. You could run a program, cut power, put the computer in a crate, ship it to the other side of the world, plug it in, and it would resume operating from just where it left off, as if nothing had happened.
For memory to be volatile is, in fact, a flaw. If it were not volatile, we'd have less need to save frequently, we wouldn't need so many UPSes, laptop battery life would be longer, less electricity might be wasted, etc. We just use volatile memory because it's fairly fast, and simple and cheap to manufacture right now, and has been for some decades, surprisingly enough. But Intel could come out with NVRAM that was faster and cheaper tomorrow, and I guarantee, people would start switching to it quite rapidly.
EULAs are worth banning for different reasons, but like I said before, I think the thing to look at is whether a copy should count if it is made with a technology where reproduction is unavoidable, and if it was made solely in the course of viewing or otherwise perceiving information, and not for the purposes of indefinate retention. This hinges a bit on what the person at the computer was thinking at the time, and their subsequent actions, but it works for any sort of technology where this problem might arise.
My point is the Supreme Court will have to take on global tax structures to make fair laws.
Do you have any concept of the separation of powers? Only Congress can enact taxes and tariffs. The Supreme Court has no more power to make laws regarding tariffs than I do. Nor do they even have significant oversight; off the top of my head, I can't think of any relevant reason why whatever import legislation Congress sees fit to pass would be unconstitutional in the main.
Plus it's all irrelevant to this case.
Basically, I'm deriding you because you don't have even a very basic understanding of how the government works. If you're posting earnestly, then I'm going to say that you're a crackpot; an idiot that's not informative and not worth listening to. So go on with all this if you enjoy being in the company of flat-earthers, or people that believe in unicorns controlling what's shown on tv, but don't expect to be taken seriously.
I think the term 'capable' is the important one. It does not need to be shown that currently, or historically, there have been a substantial number of noninfringing uses. Only that there potentially might be in the future. (e.g. if RIAA decided to expressly authorize people to download their music via BT)
The ratio of noninfringing to infringing uses now doesn't matter, except that if it's favorable to the defendant, it bolsters his defense. It can't help the plaintiff at all.
Normally I would've expected any halfway intelligent P2P network developer to have learned the lessons of the Sony and Napster cases and limited their actions so as to avoid liability.
That doesn't help the users though; uploaders and downloaders are breaking the law and can get nailed for it.
Still, that the Court would take this indicates that there's a good likelihood of Sony being replaced with something else, and that's pretty bad.
Overall, I think that we need massive copyright reforms, and that good reforms would likely be favorable to the developers and users of P2P networks.
Was there something more specific you were curious about?
If the Supreme Court is truly serous about Copyright Law then it will need to enact a heavy Copyright Infringement Tax on any goods being shipping in from China and other coutries where the Copyright Law is Totally Abused.
I'd be very surprised to see the Supreme Court enact legisation creating a tariff on imported goods. You failed civics, didn't you?
Also, imports of copyrighted works are regulated already.
As for China, why can't they be free to decide what copyright laws suit them best? Certainly we should get to decide what works the best for us, without interference from the rest of the world.
Applying constitutionality to modern technology is a little tricky
Maybe so. But this case has nothing to do with the Constitution. Just federal common law. No rights, and no amendments are implicated to any real degree.
No, they need merely show that P2P is capable of significant noninfringing uses. Actual uses are not required. It's trivial to meet that standard; this case is about changing the standard.
This has everything to do with the providers of P2P networks providing reasonable safeguards against copyright infringement, which, like it or not, is the law of the land.
No it is not the law. Want to point to the statute or case that supports you?
The Sony case, OTOH, says this: (emphasis mine)
If vicarious liability is to be imposed on Sony in this case, it must rest on the fact that it has sold equipment with constructive knowledge of the fact that its customers may use that equipment to make unauthorized copies of copyrighted material. There is no precedent in the law of copyright for the imposition of vicarious liability on such a theory. The closest analogy is provided by the patent law cases to which it is appropriate to refer because of the historic kinship between patent law and copyright law.
In the Patent Act both the concept of infringement and the concept of contributory infringement are expressly defined by statute. The prohibition against contributory infringement is confined to the knowing sale of a component especially made for use in connection with a particular patent. There is no suggestion in the statute that one patentee may object to the sale of a product that might be used in connection with other patents. Moreover, the Act expressly provides that the sale of a "staple article or commodity of commerce suitable for substantial noninfringing use" is not contributory infringement. 35 U.S.C. 271(c).
When a charge of contributory infringement is predicated entirely on the sale of an article of commerce that is used by the purchaser to infringe a patent, the public interest in access to that article of commerce is necessarily implicated. A finding of contributory infringement does not, of course, remove the article from the market altogether; it does, however, give the patentee effective control over the sale of that item. Indeed, a finding of contributory infringement is normally the functional equivalent of holding that the disputed article is within the monopoly granted to the patentee.
For that reason, in contributory infringement cases arising under the patent laws the Court has always recognized the critical importance of not allowing the patentee to extend his monopoly beyond the limits of his specific grant. These cases deny the patentee any right to control the distribution of unpatented articles unless they are "unsuited for any commercial noninfringing use." Dawson Chemical Co. v. Rohm & Hass Co., 448 U.S. 176, 198 (1980). Unless a commodity "has no use except through practice of the patented method," id., at 199, the patentee has no right to claim that its distribution constitutes contributory infringement. "To form the basis for contributory infringement the item must almost be uniquely suited as a component of the patented invention." P. Rosenberg, Patent Law Fundamentals 17.022. (2d ed. 1982). "[A] sale of an article which though adapted to an infringing use is also adapted to other and lawful uses, is not enough to make the seller a contributory infringer. Such a rule would block the wheels of commerce." Henry v. A. B. Dick Co., 224 U.S. 1, 48 (1912), overruled on other grounds, Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 517 (1917).
We recognize there are substantial differences between the patent and copyright laws. But in both areas the contributory infringement doctrine is grounded on the recognition that adequate protection of a monopoly may require the courts to look beyond actual duplication of a device or publication to the products or activities that make such duplication possible. The staple article of commerce doctrine must strike a balance between a copyright holder's legitimate demand for effective - not merely symbolic - protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.
Unless you have an in with one of the Justices, you can't be assured of a seat. Instead it's on a first come, first serve basis. On a good day, for cases that no one cares much about, this means getting there around 6 or 7 in the morning, and waiting outside to be admitted to the gallery. For a big case, it's a good idea to be prepared to start lining up the night before.
I see now (and I'll say it just to make sure I have it right) that the law doesn't have to choose exactly when the copying occurs, or to limit it to just one copy. The law acknowledges that multiple copies are made (not all permanent) and that they are all subject to the applicable law for the country in which they were created. I missed this for some reason, and it led me a bit astray, to understate things.
Precisely. And in the US, reproduction of copyrighted works without authorization from the copyright holder is infringing, unless there is an applicable exception.
Now, while it wouldn't matter in the case of allofmp3, this really is an unfortunate situation, since it makes computers very risky to use (setting aside that most infringements go ignored, if not unnoticed). If the law were written more carefully, it would provide an exception where incidental reproduction was necessary due to constraints of technology, for activity that is properly characterized in sum as noninfringing.
My only regret is your use of ad hominem attacks peppered throughout your posts. I don't believe I've ever been called a schmuck, an idiot, blind and stupid by someone whose arguments could stand on their own merits; these are usually reserved for the last attempts of a loser to bully his opponent into submission. I guess there is a first for everything.
Well, I'm sorry, but every time allofmp3 gets discussed virtually anywhere on the net, the vast majority of commentators follow exactly the same argument as you did. It is always claimed that it's importation, not reproduction, and people always cite to 602(a)(2) and nothing else. It's very predictable and quite frustrating. I've been seeing it go on for about a year now, and I've had comparatively little success at getting people to take seriously the notion that the law may yield what seem to be strange and undesirable outcomes, much less to actually look at the relevant language and cases.
Frankly, I don't even care much if people pirate at all, much less under the current regime. But I'm very concerned with people being misinformed about the law and trying to be law abiding and nevertheless stumbling into violations. And even more than that, I think that it's important for people to know just how bad the law is right now, lest they not see the need for reform so that they can lawfully engage in the sorts of activities they'd like. (Of course, the proper reform would be internal; allowing the use of other nations' laws to defeat our own would undermine ours, and not really be a good idea.)
If someone is merely misinformed, then I generally try to politely point out the error. When the correction is disputed -- and note that no one's managed to successfully do so yet, though I welcome well-founded criticism -- then at this point, that really just sets me off.
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Regarding your first point, it's also worth noting that the Schenck case where the quote is from is really not good law anymore. The Brandenburg case pretty much has replaced it. The zombie-like tenacity of Schenck, which was never all that good to begin with, just bugs the hell out of me.
which part of "Congress shall make no law" didn't you understand?
Ah, the absolutist approach, favored by such excellent jurists as J. Douglas. It certainly holds appeal for me. I'm not sure I'm quite ready to embrace it, as I'm still trying to reconcile it with issues such as fraud or libel. But I do try to make my way towards it.
I think you may have forgoten to include your email address in your profile, or in your posts defending spam as free speech. Please post it so you can experience the full benefit of this particular form of "free speech" - you might then understand how ludicrous your position really is.
/. banner ads out for starters, and would gladly filter them from everywhere, even the real world, if I could).
I said that I think that the first amendment offers protection to spammers. I didn't say I wanted spam. I get enough already, and I don't like it. Indeed, I probably hate ads -- all ads -- more than most people here (I filter
But this is the sort of thing that separates the men from the boys in the free speech arena; willingness to defend speech that's repulsive to you. I'm Jewish, and I'd defend the right of Nazis to speak. I hate ads, and I defend the rights of advertisers. It's the same thing. I understand that not everyone can do this, but that isn't really a good thing.
Its not that others think you shouldn't be heard, but they think you are a turd.
Fair enough.
Freedom of speech does not confer a right to use other people's property to send your message.
So you're saying that I cannot call you on your landline because you own your telephone? Or that I cannot write you a letter because you own the mail slot in your door? Don't be silly.
Being able to receive communications is implicit permission for people to send them to you. If you have an email account, it begs for email to be sent. Hell, you're listing it right along with your post!
You can -- to some degree -- remove yourself from that, but it takes affirmative action to do so, and reasonable notice provided to those that you're trying to deny. Such as the 'no spam' in your address there; I think that would work, since messages to the actual address, if collected by redacting it as provided there, indicate that the sender knew or should've known of your refusal.
Your post is rather shrill, so I'll keep this brief.
In this location, I am presumed to have specifically sought to NOT have others speak at me without an invitation!
No. You have a right to reject speech so that it doesn't enter your home, and you may even be able to carry that as far as being able to ensure that it isn't sent to begin with. But it requires affirmative action to do this.
The Supreme Court, in Bolger (cited elsewhere in the thread) said that unless the recipient rejected the speech, the sender had a right to send it, even if it was unwanted.
So you're backwards on that.
Read the Rowan case, and then read the Bolger case. They're pretty important, and I think they'll set you right.
DEATH.... that's the only answer in this case.
Or so I thought. Honestly, how people can claim to support free speech, and then to say something like that is really beyond me.
Thanks. For the record, I am against advertising in all forms, even to the level of particularly noticable packaging or logos. I'm just also for free speech, so I find myself having to put up with the fact that advertisements, much as I hate them, shouldn't be banned just for that reason.
I dream of the day that augmented reality equipment becomes available. I'll be able to filter out everything from how I perceive reality. Billboards will appear to have paintings on them, ugly clothing with prominent designer logos will instead have jokes, ad pages in the newspaper will be crossword puzzles, that sort of thing.
My God, it'll be beautiful.
you keep pointing that you're a lawyer
.sig is for covering my ass; a lot of lawyers use similar things, and since I often post regarding legal issues, it's more convenient to have it appended automatically.
Actually I generally don't mention it unless someone asks. The
at the end of the day, spam requires the use of MY resources, and I have to explicitly give permission to use those resources.
Door to door solicitors have to go on your land, and use up your time for you to listen or tell them to leave. Telemarketers tie up your phone and use up your time until you hang up on them. Junk mail fills up your mailbox, perhaps impairing efficient mail delivery depending on volume, and requires that you sort through it and dispose of it, which costs time and depending again on volume and the specifics of your trash service, money.
So there's nothing unusual about spam.
And the rule is not that people cannot communicate without explicit permission. Just the opposite; people can communicate, even where it uses others' resources to some extent, unless there is explicit rejection.
This is why people can try to sell things door to door until you put up a 'no solicitors' sign. And why people have a right to send you junk mail unless you specifically have the Post Office stop it. And why people can telemarket to you until you get on a DNC list.
So for spam, until you provide a spammer with reasonable notice to not spam you further, you're considered to be allowing it.
Yes there is.
How is it legally significant? All communication incurs costs to send and to receive. Costs vary between different media, but only more or less the same for both parties.
If you can prove that there is a cost to you that you cannot avoid when they send the spam (getting junk mail isn't any appreciable cost to you in comparison to the cost to send the mail) then they do not have the right to send it.
No, I don't believe that's true. Do you have a cite?
They have no right to do anything with my time or property that I do not specifically grant them.
That's not quite how it works; rather the general rule is that you implicitly grant them permission. You need to affirmatively retract it to get to the point you want to be at.
Note that I do not care what the law says about this: fuck the law
Heh. And yet, were it not for people vigorously defending free speech, you might have gotten in trouble for saying 'fuck.' (See the Cohen v. California case, commonly known as the 'fuck the draft' case) So I wouldn't dismiss the law quite so out of hand.
I do know how crucial free speech is, despite your patronizing assertion that my belief/behavior exhibits otherwise. Our government does NOT understand what it is, otherwise the FCC wouldn't exist, and Howard Stern would have said cunt fuck shit so many times on television and radio that we would all be yawning, and complainants about erotic embraces on Angel would be dismissed without wasting a single dollar of tax-payer money, and the anti-flag burning idiots would be flgged at the stocks just for being stupid and missing the point utterly.
You had me until the end; then you justified the patronizing assertion again.
Do you really think that Thomas Jefferson would have tolerated spam?
Given that he was a man of many faults, I don't think it matters much. A lot of the framers had big ideas that they couldn't live up to. The best thing we can do is to strive to do better.
The issue is about the clearly fraudulent and illegal means which spammers use to communicate. Compromised systems, spyware, and misconfigured relays or proxies are the tools of the spammer trade.
I'm not defending any of that. Fraud is illegal regardless of medium. Ditto hacking and other forms of intrusion.
What I'm defending is spam that is not deceptive or fraudulent and which is not sent via such bad practices as listed above. When people talk about getting rid of spam, they're including this kind, and that's when they go too far.
For example, televised alcohol ads are banned
No they're not. I don't know if you watch any sports, but I assure you that you'll see a lot of beer ads if you do.
certain types of ads are prohibited near schools
IIRC I think these prohibitions tend to get struck down. I know the anti-tobacco one in MA was like this, and it did. But I'd want to look into the subject to make sure of the current rulings.
If spammers would just stick to a set of reasonable rules - like sending mail from a valid address, actually removing your address when you request it, using a standard header to indicate that the mail is a mass-mailing - I'd have no problem with it, because I could easily filter it out. This is what the spammers in the FA got nailed for - "...using false Internet addresses to send mass e-mail ads." I have no problem with this.
I think that spammers that did the above would be on solid legal footing, and they are the ones that I'm defending here. Also I don't think that standard headers would need to be required; there's certainly no requirement that junk mail make itself obvious, and we all seem to get by okay.
With spam, however, I get several hundred messages a day, making up over 90% of all my email. This is completely unreasonable.
Filtering and pressing delete is not that hard. Plus of course, unless that spam all comes from one or a couple of sources, so what? There's nothing illegal about a thousand people sending you a message each if they're not acting in concert, and possibly not even if they are.
How do you plan to trace a spam message to a particular spammer and actually make the opt-out stick?
If there were a flat-out ban on spam, how would you enforce it, since you'd need to be able to prove that particular spam came from particular spammers.
It's not as though I'm making things difficult. Even the anti-speech crowd here doesn't have a good answer. Any solution for one would work for the other.
Of course, I would caution you against some solutions for that specific problem. Many people seem to like the Internet being a medium by which anonymous or semi-anonymous speech is possible, where it's difficult to track people, etc. It may very well be that the unusual levels of practical freedom around here that so many enjoy can't be maintained in conjunction with meaningful litigation involving spammers. Is spam such a big deal that we might want to sacrifice the rest?
Personally, I think that filtering on the receiving end is good enough. While I do think that fraudulent and deceptive spam, and probably even spam sent after meaningful opt outs should be curtailed, I'd rather continue to put up with them if the only way to deal with it was a more sanitized Internet.
Much like junk faxes, e-mail spam places most of the burden and cost of disposing of spam onto the receiver.
The burden and cost of disposing of junk mail falls on the recipient too. And of telemarketing calls. And of slamming the door in people's faces.
Like I said, costs are not legally relevant. Every medium for communication incurs costs on senders and recipients, and they naturally vary according to medium. It doesn't matter, though. If you're going to employ such a medium, you should know that it won't be all sweetness and light.
Just because my front door faces the street doesn't mean anyone can come up to my door and try to sell me something or even try to just TELL me something. I can put up signs that say "No tresspassing" or "No solicitation" and because I OWN that property, you have to have permission to come onto my property or you are tresspassing.
Exactly my point! You can do this, but until you provide such effective notice, you are considered to have implicitly allowed people to come up to your door. You have to affirmatively reject communications, and the government cannot choose to do so for you (because after all, maybe you like having people come to your door).
So all you need to do is to do this with spam, and you're all set! I never said that spammers could continue to spam in light of such measures. I said that they couldn't be barred from spamming generally, i.e. in the absence of such things.
If I give someone my e-mail address, that, and ONLY that gives that person permission to send me e-mail. If I revoke that permission, that person should no longer be able to send me e-mail. Just because my mail account is open to anyone doesn't mean I have to tolerate unsolicited marketing.
Sorry, but that's not how society works. If you have a phone number, anyone can call it, unless you say otherwise. Ditto for other communications methods. You basically admitted this yourself with regards to the door. Sorry if you don't like it, but that's how it is.
The difference is that the junk mailers paid to have their crap sent. A huge amount of the Postal Service's money is generated by junk mail. If it disappeared tomorrow, the Postal Service would be in for some pretty dire straits.
The point is that sending a physical object has a direct economic impact on the sender, and much less so on that of the sendee. They paid for the paper, the printing, and the stamp... And don't be fooled, it cots tons of money to mass mail, even for a non-profit orginazation, which gets a substantial cut on postage. The recipiant has to only look at it, decide wether or not it's worth reading, then shit-can it.
But this has no legal signifcance. Free speech is free speech regardless of cost, and remember, both speaker and listener ALWAYS incur costs associated with speech in ALL forms, if only in time.
Frankly, I think it's easier to have email automatically filtered, or to delete it with a single keypress, then it is to have to manually sort through junk mail, walk to the trash can, and throw it out. And if the latter, greater burden, is one that the Supreme Court thinks is okay, why not the lesser?
Then there's the trouble about trying to notify spammers and whatnot... Okay, so you click on the "do not receive further spam" link... Perhaps they're obligated to stop sending mail (or not), but that dosen't stop them from making a buck off of you. That little click gave them a host of valuable information that they can turn around and use directly, or sell. They learned that someone reads mail sent to that address, and by logical deduction, they learned that the person that read it is stupid enough to read (more) spam. They learn what kind of spam people respond to (or at least the ones stupid enough to read it), they learn when they read their mail, etc. I'd guess that an active e-mail address is worth lots and lots more than a dead one, or one that never responds. Perhaps you do tell a spammer not to spam you, but in the course of doing so, you've got more spam from two other spammers. Like that's going to go somewhere.
While no legislation within a country will ever help against spam sent from abroad, please read the details of the Rowan case cited previously for your answer to this. It's not a big deal for those that the law can reach. And even outright bans won't stop those that it can't, so they would be inappropriate.
Theft of services is not "free speech".
Sure, but it also isn't inevitable with spam, so what's your point?
The difference (the senders of junk snailmail pay for the service they use; the senders of spam impose this cost on their targets) is a matter of common knowledge.
Firstly, receiving any communication incurs a cost on the recipient: junk mail has to be sorted through and thrown away. Telemarketing calls have to be hung up on. Door to door solicitors involve getting up, opening the door, telling them to go to hell, and slamming it again. There's always a cost in time, and sometimes in resources.
Likewise, there is always a cost to the sender: junk mail needs postage; telemarketing needs phones, phone service, and people to man them; spam requires computers and bandwidth.
These costs may vary, but the mere existence of costs is legally insignificant. Recall the Supreme Court's ruling in Bolger v. Youngs Drug Products, 463 U.S. 60 (1983), where they upheld the right of junk mailers to send junk mail, and said that while it imposed a cost on recipients, "the 'short, though regular, journey from mail box to trash can . . . is an acceptable burden, at least so far as the Constitution is concerned.'"
I would argue that the same holds true with regards to spam. It's not difficult to filter, nor to delete. It can be automated, or done at the press of a button. It's easier than with junk mail.
It is also a matter of common knowledge that spammers routinely sabotage attempts to reject their communications.
How so? I've never yet seen a spam that resisted attempts to delete it.
Now, if the spam is that subset of spam which is deceptive or fraudulent, then of course it is not protected by the first amendment. But truthful and forthright spam that nevertheless can get through filters seems to fall within the shield of free speech. (c.f. junk mail sent in hand-addressed envelopes, which at first glance would not appear to be junk mail, but isn't really deceptive)
Solicited mailings are, by definition, not spam.
I'm talking about people who want unsolicted spam. It could only be solicited if they undertook affirmative action to get it. But if it shows up out of the blue, without invitation, it still might be welcomed. In a society that values free communication, this is the default.
The law need only treat e-mail filtering as it treats other form of comptuter security, and the problem is solved.
Actually, it would be disasterous.
This statement can thus only be interperpreted as willful trolling
I never troll. I'm stating my honest belief and my opinion of the law based on careful consideration and drawing upon my legal education, having been checked against others of even more significant stature.
Don't tell me that just because you disagree with me, you think that I shouldn't be heard?
You're not a lawyer are you? Well, I'm not either.
Actually, I am a lawyer. I'm licensed to practice in Massachusetts. But I'm not your lawyer, we don't have an attorney-client relationship, and this isn't legal advice. For those things, see a lawyer licensed to practice in your jurisdiction who is willing to enter into such a relationship with you.
You not only have the right to refuse any mail, but you have the right to prevent any mail from being sent to you in the first place. The Supreme Court said so.
Note that I said 'strong right,' not 'absolute right.'
The case you're probably thinking of is Rowan v. US Post Office Dept., 397 US 728 (1970). And indeed, the Court did find in Rowan that it didn't violate the junk mailer's first amendment right for the individual recipients to, via the Post Office, prevent further junk mail from specific senders from being sent.
The key is, that it took action by specific recipients against specific senders. This is important, because next we see Bolger v. Young's Drug Products, 463 US 60 (1983), in which the Court upheld the first amendment rights of junk mailers. There, the government had stepped in and banned junk mail on its own initative, because recipients might have been offended. In that case, the Court decided that it was up to the recipients to decide for themselves whether or not they were offended, and that the government could not act to protect people who might be offended since such recipients could easily avoid reading the junk mail and just throw it out. The burden of not reading things and throwing things out was too low to justify government intervention.
So sure -- if you notify a spammer after the fact, or in advance, by some reasonable means, that they should not send further spam to you, then I think that it might very well be sufficient for the government to make sure that they don't. (Though I'm wary of this, since I'd rather err on the side of more speech than less)
But the onus is on you, the individual recipient. If you don't tell people you don't want something, don't fault them for sending it. And just because you don't want something, don't stand in the way of the people who do. (Though I'd have to wonder about who the hell actually wants spam)
I should be able to prevent anyone trying to send me this stuff from connecting to my port 25.
And you can. Turn off your port 25. That'll work.
Otherwise, I suggest telling spammers to not spam you anymore, and to follow up on that with appropriate legal action if they continue.
But force goes too far.
Spam does fall within free speech.
You're right in that spammers have no right to ensure that you ultimately receive spam. However, they do have a strong right to send it to you. What you do with it is your own affair, however.
There is no legally significant difference between someone sending you a million emails and someone sending you a million pieces of junk mail. In both cases, your ability to receive communiques by the medium is considered implicit permission for the world to send you things. In both cases, you can refuse to accept them, or can throw them away unseen, and with virtually no effort on your part.
While I hate advertising everywhere, it strikes me that people who are opposed to spam to the degree you exhibit not only lack an awareness of how crucial free speech is, even where it disgusts you, but are also amazingly lazy and would prefer that free speech not exist just so that they don't have to press a delete button. That's pretty sad.
Me, I place spam in the same category as the KKK -- it's amazingly distasteful, and I think we'd all be better off without it, but that no one person's decision should be imposed on other people. If someone out there wants spam, then I would be doing them a disservice if I kept them from getting it. If someone out there wants to send messages to people, then were I to ban their message based on its content or it being widely disseminated, then why couldn't that be used against me by someone else?
Free speech means having to tolerate the existence of speech you don't like. No one is making you listen to it, however.
You quote that the law distinguishes between a copy which is tangible, vs. one which is transitory.
No, you're misreading it slightly. No matter what, a copy's not a copy unless it's tangible. The issue you're noting is whether the work is fixed in the tangible medium for more than a period of transitory duration. If it's not, then it's not technically fixed, and you need fixation to have a copy.
So basically I think you're asking whether, because it has to be refreshed every 10 nanoseconds or so, information in RAM is only there for a transitory duration.
I think the problem is 'every.' If the information were only there for a few nanoseconds, your argument would have merit. But what you're trying to do is to get the court to say that you can have information in there for a year and a day by continually refreshing it, but that they'll only treat it as having been there for 10 nanoseconds. I don't think they'd go for this. That would totally fly in the face of any notion of transitoriness by virtue of the cumulative time the information was present.
MAI already pretty much settled the issue, and it's what courts will follow. If you want to challenge it, you have my blessing, but I don't think it'll work. Courts are not computers; they don't get caught up on small details so much as they look at the big picture. People with technical backgrounds, it strikes me, frequently behave as though courts cannot employ common sense, and can be exploited on technicalities. It doesn't really work like that. Some technicalities are important, but leave them to the lawyers to understand what they are, when they'll work, and how to use them. Eventually you get a feel for it.
As for your lobbying proposal, I feel it is too short sighted. Computers have often varied between using volatile and nonvolatile RAM. Core memory, popular in the 60's (and from where we get our term 'core dump' was nonvolatile. You could run a program, cut power, put the computer in a crate, ship it to the other side of the world, plug it in, and it would resume operating from just where it left off, as if nothing had happened.
For memory to be volatile is, in fact, a flaw. If it were not volatile, we'd have less need to save frequently, we wouldn't need so many UPSes, laptop battery life would be longer, less electricity might be wasted, etc. We just use volatile memory because it's fairly fast, and simple and cheap to manufacture right now, and has been for some decades, surprisingly enough. But Intel could come out with NVRAM that was faster and cheaper tomorrow, and I guarantee, people would start switching to it quite rapidly.
EULAs are worth banning for different reasons, but like I said before, I think the thing to look at is whether a copy should count if it is made with a technology where reproduction is unavoidable, and if it was made solely in the course of viewing or otherwise perceiving information, and not for the purposes of indefinate retention. This hinges a bit on what the person at the computer was thinking at the time, and their subsequent actions, but it works for any sort of technology where this problem might arise.
My point is the Supreme Court will have to take on global tax structures to make fair laws.
Do you have any concept of the separation of powers? Only Congress can enact taxes and tariffs. The Supreme Court has no more power to make laws regarding tariffs than I do. Nor do they even have significant oversight; off the top of my head, I can't think of any relevant reason why whatever import legislation Congress sees fit to pass would be unconstitutional in the main.
Plus it's all irrelevant to this case.
Basically, I'm deriding you because you don't have even a very basic understanding of how the government works. If you're posting earnestly, then I'm going to say that you're a crackpot; an idiot that's not informative and not worth listening to. So go on with all this if you enjoy being in the company of flat-earthers, or people that believe in unicorns controlling what's shown on tv, but don't expect to be taken seriously.
I think the term 'capable' is the important one. It does not need to be shown that currently, or historically, there have been a substantial number of noninfringing uses. Only that there potentially might be in the future. (e.g. if RIAA decided to expressly authorize people to download their music via BT)
The ratio of noninfringing to infringing uses now doesn't matter, except that if it's favorable to the defendant, it bolsters his defense. It can't help the plaintiff at all.
Normally I would've expected any halfway intelligent P2P network developer to have learned the lessons of the Sony and Napster cases and limited their actions so as to avoid liability.
That doesn't help the users though; uploaders and downloaders are breaking the law and can get nailed for it.
Still, that the Court would take this indicates that there's a good likelihood of Sony being replaced with something else, and that's pretty bad.
Overall, I think that we need massive copyright reforms, and that good reforms would likely be favorable to the developers and users of P2P networks.
Was there something more specific you were curious about?
If the Supreme Court is truly serous about Copyright Law then it will need to enact a heavy Copyright Infringement Tax on any goods being shipping in from China and other coutries where the Copyright Law is Totally Abused.
I'd be very surprised to see the Supreme Court enact legisation creating a tariff on imported goods. You failed civics, didn't you?
Also, imports of copyrighted works are regulated already.
As for China, why can't they be free to decide what copyright laws suit them best? Certainly we should get to decide what works the best for us, without interference from the rest of the world.
Applying constitutionality to modern technology is a little tricky
Maybe so. But this case has nothing to do with the Constitution. Just federal common law. No rights, and no amendments are implicated to any real degree.
No, they need merely show that P2P is capable of significant noninfringing uses. Actual uses are not required. It's trivial to meet that standard; this case is about changing the standard.
No it is not the law. Want to point to the statute or case that supports you?
The Sony case, OTOH, says this: (emphasis mine)
Unless you have an in with one of the Justices, you can't be assured of a seat. Instead it's on a first come, first serve basis. On a good day, for cases that no one cares much about, this means getting there around 6 or 7 in the morning, and waiting outside to be admitted to the gallery. For a big case, it's a good idea to be prepared to start lining up the night before.
I see now (and I'll say it just to make sure I have it right) that the law doesn't have to choose exactly when the copying occurs, or to limit it to just one copy. The law acknowledges that multiple copies are made (not all permanent) and that they are all subject to the applicable law for the country in which they were created. I missed this for some reason, and it led me a bit astray, to understate things.
Precisely. And in the US, reproduction of copyrighted works without authorization from the copyright holder is infringing, unless there is an applicable exception.
Now, while it wouldn't matter in the case of allofmp3, this really is an unfortunate situation, since it makes computers very risky to use (setting aside that most infringements go ignored, if not unnoticed). If the law were written more carefully, it would provide an exception where incidental reproduction was necessary due to constraints of technology, for activity that is properly characterized in sum as noninfringing.
My only regret is your use of ad hominem attacks peppered throughout your posts. I don't believe I've ever been called a schmuck, an idiot, blind and stupid by someone whose arguments could stand on their own merits; these are usually reserved for the last attempts of a loser to bully his opponent into submission. I guess there is a first for everything.
Well, I'm sorry, but every time allofmp3 gets discussed virtually anywhere on the net, the vast majority of commentators follow exactly the same argument as you did. It is always claimed that it's importation, not reproduction, and people always cite to 602(a)(2) and nothing else. It's very predictable and quite frustrating. I've been seeing it go on for about a year now, and I've had comparatively little success at getting people to take seriously the notion that the law may yield what seem to be strange and undesirable outcomes, much less to actually look at the relevant language and cases.
Frankly, I don't even care much if people pirate at all, much less under the current regime. But I'm very concerned with people being misinformed about the law and trying to be law abiding and nevertheless stumbling into violations. And even more than that, I think that it's important for people to know just how bad the law is right now, lest they not see the need for reform so that they can lawfully engage in the sorts of activities they'd like. (Of course, the proper reform would be internal; allowing the use of other nations' laws to defeat our own would undermine ours, and not really be a good idea.)
If someone is merely misinformed, then I generally try to politely point out the error. When the correction is disputed -- and note that no one's managed to successfully do so yet, though I welcome well-founded criticism -- then at this point, that really just sets me off.