With regards to the cases that I claim exist, you have conveniently cited some of them.
But only some? This means that there must be others. And you still haven't cited them. All you've done is rely on my cites. That's convenient, but I still want to see you provide your own citations to other cases that actually do support your reasoning.
Of course, I've been where you are. I've had situations where there was absolutely no precedent to support my case, and everything was against me (of course this was a case that was assigned to me, rather than something I undertook voluntarily). It's not fun. But I'm disappointed that you're not being open about it.
the "copies" are made on Russian servers located in Russia
There's no need for quotes. And yes, some copies are being made in Russia. But all that matters for the sake of infringement is that some copies are made in the US.
The copies made in the US are: RAM in which the downloaded information is fixed, and; hard drives and other non-volatile media in which the downloaded information is fixed.
..."copying" for purposes of copyright law occurs when a computer program is transferred from a permanent storage device to a computer's RAM...
Indeed. In that case, the only location at which this could happen is at the server, which is located in Russia, because, in order to send it over the wire, the data must first be copied into RAM.
Wow. That's an amazing misreading. I salute you.
The MAI court is saying that reproduction occurs when information is fixed into tangible media. In MAI, the issue was not whether that was the only way a copy could be made, but whether that was a way a copy could be made.
When Russians rip a CD (which is a copy) to a computer, copies are made of the ripping computer's RAM, and then of the hard drive to which the ripped music is ultimately saved. When serving that data, the RAM is once more a copy, as information is reproduced into it from the hard drive.
But the downloader's computer has its own RAM, and when information is fixed into it, it becomes yet another copy. Ditto for the downloader's hard drive.
The downloader's copies are in the US. The downloader is in the US. The action of fixing information into the copies took place in the US. This gives us good grounds to find infringing activity by the downloader in the US.
It is interesting, however, that you would then cite Marobie-FL v. NAFED, which has no bearing here:
Marobie-FL ultimately stands for the proposition that the downloader is responsible for his own willingly undertaken downloads. He is the factual cause of the download: but for the downloader, the infringement could not have taken place. He is the proximate cause of the download: It was his hand that initiated the process, and everything after that ran on automatic (automatic credit card processing is still automatic -- no human was involved).
Napster and Intellectual Reserve both stand for this point as well.
And of course, since copyright infringement is a strict liability offense civilly, it doesn't even matter what the downloader thought; only that it was he that did it.
I think it's a good point to bear in mind.
we get ourselves into a mess, since 17 USC 101 makes it clear that "copies" and "phonorecords" must be tangible objects
'We,' white man? This has been my point all along.
This simply bears out my thesis that there is confusion in the courts and the legislation about what a "copy" is. Courts define a "copy" as it is defined in 17 USC 101
Congress is, for purposes of statutory interpretation, almost totally incapable of being confused. When courts read law, they always assume that Congress chose every word, and placed every character, deliberately. If this leads to a conflict, the laws must be read in a way that they don't conflict. Only where this is completely imposs
There have been multiple cases in the US that have shown that the actual reporduction of digital copy occurs at the *server* not the client.
Aside from that such an argument is nonsense -- you say there are cases. Cite them.
I can cite mine:
The district court's grant of summary judgment on MAI's claims of copyright infringement reflects its conclusion that a "copying" for purposes of copyright law occurs when a computer program is transferred from a permanent storage device to a computer's RAM. This conclusion is consistent with its finding, in granting the preliminary injunction, that: "the loading of copyrighted computer software from a storage medium (hard disk, floppy disk, or read only memory) into the memory of a central processing unit ("CPU") causes a copy to be made. In the absence of ownership of the copyright or express permission by license, such acts constitute copyright infringement." We find that this conclusion is supported by the record and by the law.
MAI v. Peak, 991 F.2d 511 (9th Cir. 1993)
Unlike the defendants in MAI, the court reasoned, neither the operator nor the provider initiated the copying; their systems were merely used to create a copy by a third party. Id. at 1369-71. Similarly, the court found that only the subscriber should be liable for causing the display or distribution of the copyrighted work because the actions of the operator and the provider were "automatic and indiscriminate." Id. at 1371-72. Thus, Northwest argues it cannot be held liable for direct infringement because if any copying, distribution or display of plaintiff's work occurred, it was caused not by Northwest, but by Internet users.
Northwest's second argument is persuasive.
Marobie-FL v. NAFED, 983 F. Supp. 1167 (N.D. Ill. 1997)
The first question, then, is whether those who browse any of the three infringing websites are infringing plaintiff's copyright. Central to this inquiry is whether the persons browsing are merely viewing the Handbook (which is not a copyright infringement), or whether they are making a copy of the Handbook (which is a copyright infringement). See 17 U.S.C. 106.
"Copy" is defined in the Copyright Act as: "material objects . . . in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. 101. "A work is fixed' . . . when its . . . sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." Id.
When a person browses a website, and by so doing displays the Handbook, a copy of the Handbook is made in the computer's random access memory (RAM), to permit viewing of the material. And in making a copy, even a temporary one, the person who browsed infringes the copyright.
Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999).
We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holders' exclusive rights: the rights of reproduction, 106(1); and distribution, 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights. Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights.
A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001).
So, they make a copy and send it over the wire to me.
Which is impossible.
A copy is defined by the law, at 17 USC 101, as being a tangible object. If you've figured out how to send tangible objects via wire, then please demonstrate this absolutely stunning new technology, by, e.g. emailing me a glass of water.
Of course, that's not what's going on here. What's actually
No, in the law, a copy is a tangible medium within which a work is fixed. An mp3 is not a tangible medium, it's just information. You cannot hold an mp3, all by itself, in your hand.
If the mp3 is on a hard drive, then the copy is the hard drive. If it's in RAM, then the copy is the RAM. Etc.
So since you cannot cause a hard drive in Russia to get sucked into a wire and get popped out the other end, the copy is not being transferred. Instead, the downloader is placing the work into a second tangible medium, i.e. creating a second copy. That's reproduction.
Whether or not that second copying is illegal depends on whether or not copying for personal use is permitted under your laws - some places it is some it isn't.
In the US, all unauthorized reproduction of copyrighted works is illegal unless you fall within an applicable exception. There is no exception that covers all personal use.
If it would be legal for you to buy a cd in russia, bring it back to the US and then copy it to your HDD
That could easily be illegal in the US. It depends on specific information about who was involved with making the CD, and where. Importation of copies of copyrighted works is generally prohibited as a form of infringement. (And even where someone who thinks they are clever cites exceptions to this, let me note that those exceptions are usually not sufficient)
The trick is that that logic works both ways: Russian law can't apply to any parts of the transaction that occur outside of Russia. For a US downloader, since the sound recordings are only fixed in a tangible medium (i.e. the downloader's RAM, HD, etc.) by the downloader outside of Russia, it's US copyright law that applies to that, and our law says that it's illegal reproduction.
Just because at best it might have been legal to do so in Russia doesn't mean it's legal to do so here.
Depends on what stage you're talking about. Everything I've been involved in got dropped or was settled before getting to court. But my legal career is still just getting started, so ask again sometime. Mostly though, I expect to be doing transactional work.
I'll defer to you on the methodology of the numbers, but you seem to have a rather positive view of the legal system.
Well, I'm a lawyer. Generally I find that when you study the system carefully for several years, you find that it's designed pretty sensibly, and that numerous alternatives tend to be considered and if rejected, for a good, if perhaps subtle, reason.
But it seems to me that it is subject to upfront agreements and forgive me if I'm somewhat jaded as to what reasonable means.
Well, sort of. Contingency fees are not available in some areas -- divorce proceedings, for example. But when they are, the decision as to whether to pay one is up to the client. They can always pay the up-front hourly fee, whether they win or lose, and keep the award to themselves. The worst a lawyer can do is not take a case of a client that comes in the door.
As for the reasonable amounts, 1/3 is the common practice. Sometimes fees might be paid in some form other than money (e.g. a business might pay in equity) but these sorts of things are on thin ice, and while sometimes allowable get watched closely.
Anyway, you might be interested to read the Rules of Professional Conduct. All jurisdictions have them, and lawyers are obligated to follow them or risk being sanctioned or disbarred. Bars generally require applicants to the bar to have either taken certain classes in them, or to have achieved certain scores on the Multistate Professional Responsibility Exam (which is distinct from the LSAT or Bar Exam).
No, I think that it's basically because they figured that it wouldn't significantly harm their business, but that it was safer to channel people who want to regulate them into that avenue rather than something more serious.
Personally, I think smoking anything is really dumb, and that we have plenty of better drug delivery systems, but this sort of ban is offensive to the first amendment.
1971, IIRC, and there was only ever one challenge, and it was at the time of passage. First amendment law has evolved since, but there don't seem to have been further challenges made with regards to this statute. If someone did make one, though, I think they'd win.
Those adds in effect are telling you their drugs are safe, with the caveat of all the often disturbingly dangerous side effects they quickly rush through at the end.
Which is to say, they are disclosing things.
Well in the cases of numerous drugs they are pushing it turns out they are in fact dangerous, they had the data that showed they were safe and they've been colluding with corrupt officials in the FDA to suppress it. The short list Bextra, Cresto, Meridia, Serevent and Vioxx.
Well, I don't know whether they're safe or not. If there's been corruption, then it should be rooted out. And if they aren't safe for use, then yes, it shouldn't be advertised. That still doesn't help with regards to your proposed ban as to all prescription drugs, since presumably some of them are safe, and were not approved wrongfully. You keep on tarring with too wide a brush.
But it would only be limited to such media. It could not be, as the earlier poster proposed, a total ban everywhere.
Plus, it is debatable as to whether the cigarette ban will hold up. It's not got a lot of precedent in favor of it. If challenged -- which is unlikely, IMO -- I think it would get overturned.
If there was a first amendment issue here then Congress couldn't have banned television and radio ads. At this point you are just hair splitting hairs trying to salvage an arguement you've lost. You may not like it but the precedent already exists for Congress and the FCC to ban advertising on TV and radio which is where the drug companies are pouring billions of dollars each year to the detriment of everyone(except the media raking in those ad dollars).
No, not really. Like I said, there's been a total of one challenge of this kind, and it's very old in light of the developments in first amendment law since. I don't think it would continue to hold up.
That said, I've lost nothing, and I'm splitting no hairs. Your original statement regarded all advertising, in all media. It was fatally overbroad, you might say.
Its equally bad, if not worse for coporations to be allowed to use their deep pockets to bombard us with often false information that is really bad for us.
I'm not defending that. I think that false commercial speech probably can be lawfully regulated and in fact that's what the caselaw says as well. But I don't think that the typical prescription drug ad on tv is false. Annoying, maybe, but that's it.
Where the information is truthful, why should it be kept from people?
For example the cigarette companies saturated TV, radio and movies with ads for their products in the '50's and '60's and suckered whole generations in to thinking it was cool to smoke. Millions of people died as a direct result of that advertising and the health care costs caring for them have run in to the hundreds of billions if not trillions. They also effectively suppressed the fact that they were pushing an addictive drug, so once people started they couldn't stop.
Yes, and provided that the millions of nicotine addicts were provided with assistance (probably via delivery systems that are better than the bizarre and obviously unhealthy practice of breathing in smoke!) I wouldn't even have a big problem with banning tobacco altogether. I'm not fan of cigarettes, and I find the prior actions of tobacco companies reprehensible. But provided they have a legal product, and they don't lie or mislead people about it, I see no basis for limiting their ability to advertise it.
You seem to be obsessed with fear of government propaganda and censorship buy you've seem completely indifferent to corporate propaganda and censorship through saturation.
I don't even understand what that last point is supposed to mean, but I'm willing to stand by the precept that speech which is for some reason merely objectionable should be countered by more speech, not by censorship. There are more avenues for speech now than ever before. If your message is worthwhile, whatever it is, you don't need to silence people in order to spread it.
I'm 100% with you on first amendment protections for individuals, but I draw the line at protecting the right of corporations to use their wealth for propaganda, deception and fraud.
Again, I'm quite against deception and fraud. What I'm for is the truth, whatever the subject.
I don't have billions of dollars to spend to run ads to counter the drug companies.
Your post here can be viewed by untold thousands of/. readers. The Internet is a great communications medium, and it doesn't take billions to use it. Start here, if nowhere else. I won't promise to agree with what you say, but I'm very happy that you can get it out there.
Your doctor should be deciding if you need them
Actually, the patient should have the ultimate decision. If he wishes to follow his doctor's advice, and that is his doctor's advice, then that's fine. But doctors shouldn't get the last word in medical decisions whenever possible; they don't have to live with it.
Yes we did. Congress banned cigarette ads on television and radio in 1971 (the exact year I'm not sure of).
No, we didn't. You said advertising before, and I called you on it. You should have said, as you're saying now, that they banned _some_ advertising.
Presumably Congress might get away with it on broadcast media for drugs too, but that still couldn't affect any other media. And at any rate, I don't recall that there have been any challenges to 15 USC 1335 since about the time it was passed, so I wouldn't bet the farm on its constitutionality.
but there are have been no outright cigarette ads in the U.S. for 34 years
Except for outright cigarette ads on billboards, in magazines, store displays, etc. In fact, everywhere other than radio and TV.
Cigarette ads are still allowed in print
Not allowed; can't legally be disallowed.
You see thats the rub, it was never recognized that corporations had first amendment rights until the 1970's. The first amendment is well over 200 years old but somehow this right only sprung in to existence recently.
No, it always existed. It's just that the courts have only gotten good at civil rights cases in the 20th century. The 14th amendment was about a hundred years old before the courts finally started to recognize that it prohibited segregation. Does this mean that the civil rights cases from Brown on were wrong, because the whole line of cases in that vein didn't get decided during reconstruction, like they should have?
The fact that the wheels of justice turn slowly should not be misinterpreted to mean that justice is inappropriate.
Plus, if you bother to check, you'll find that one of the key reasons for first amendment proteection of commercial speech is to protect the public. For the government to paternalistically limit the free flow of factual information that the public can receive is bad for us.
As usual, the cure for objectional speech is not a ban, but to instead encourage more speech. If you don't like these ads, tell people so, and make your case to them. Then they can decide if they want to ignore them. But since you're not the boss of everyone else, you shouldn't make the decision for them.
If it is a first amendement violation explain to me how we outlawed advertising cigarettes, they are a regulated drug too.
We didn't. I see cigarette advertisements all the time.
Its also very much open to debate if corporate speech is protected by the First amendment.
No, the Supreme Court has repeatedly stated flat out that commercial speech is protected by the first amendment. They've been saying so for, oh, 30-40 years now, IIRC.
No, the lawyer only gets a percentage of the portion of the final award that is greater than the state's offer. So in your example where the state offers $1.7m and you get $2m, the lawyer gets 1/3 of the difference, i.e. $100k.
Also contingency fees are typically 1/3. They're usually not significantly lower, and are virtually never ever higher, since lawyers are only allowed to charge reasonable fees.
Of course, it's up to the client as to whether they want to hire a lawyer on contingency or not. They can always pay hourly fees up front, win or lose. Contingencies result in payments only if you win, and at the end of the case, but since the lawyer would be taking quite a risk, they can be higher.
Just compensation is a tricky term, the state decides and they have NO reason to make it fair or just. If you do not like that figure then you can always sue, sue the state that is. The cost of a suit with lawyers quickly convince most people to take the second offer made by the state. Not a fair fight.
That seems odd. I know that in some jurisdictions at least, the way fees in eminent domain cases are handled is that the attorney can work on contingency, taking a percentage of whatever amount he can get for the client, less the amount originally offered by the state.
So for example, if the state offers you $100,000, and he gets an award in court of $1 million, then he could get as much as $300,000, and you get $700,000.
Does CT not allow for contingencies in these cases?
Yes, but what invariably happens is that the valuation is disputed by the owner whose property is being condemned. This then moves the dispute into court because property cannot be taken lawfully without due process.
Each side brings their appraisors in to testify and the court decides what the actual fair value is. IME it's usually way above what the state wanted to pay initially. This results in either the state not wanting to pay, and therefore not taking the property, or having to pony up more.
If my recording of a television show is "fair use", then watching a downloaded copy and recording the original myself and then watching it are the same thing with the exception of who did the recording.
No, that's not necessarily true. Fair use requires a fairly complex analysis for each time it is alleged. While one can of course analogize taping off of the air (which may be fair sometimes, but is not necessarily always fair) to downloading (ditto), there's nothing to indicate that the analyses will come out the same. It may very well be that to a court, who did the recording is important.
I'm watching shows recorded from what are essentially freely available transmissions. And copyright lawyers aside, I'll keep doing so, with a clean conscience.
I'm a lawyer that works in the copyright field, but don't let me stop you. I don't really care all that much.
Bullshit. It's more likely first sale, if the tape was lawfully made to begin with. Only if that didn't apply would you ever resort to claiming that it was fair use.
Even recording for your own use is a copyright infringement, except that it has been found to be a permissible Fair Use. However, if you watch it more than once, that's illegal again.
No. Where the hell are you getting this, anyway? Private performance is not part of copyright; you can do it as much as you want.
So if you lawfully record it, i.e. if the infringing recording is noninfringing per fair use, then watch it all you like. (Of course, watching it a lot might indicate that it was a commercial substitute for something else, which plays into whether it was ever a fair use to begin with....)
Lending a VHS tape to a friend is illegal too,
Not if the copy was lawfully made. If it was lawfully made, it is then eligible for the first sale exception at section 109. Again though, this can have an affect on the lawfulness of the fair use analysis regarding the recording itself.
I'm afraid you are confused. It is illegal, except for those specific instances of downloading or uploading where it might happen to fall within an exception to copyright law. There is an important difference between lawfully recording it, and loaning out that specific copy to someone else and instead just putting it on a server for other people to download.
An interesting and subtle point. You're right in that 17 USC 504(c)(1) talks about damages being awarded "with respect to any one work," and that 504(c)(2) does not mention the number of works at all.
However, mine is a valid reading, i.e. taking 504(c)(2) to mean to raise the values in 504(c)(1) without affecting the rest of the calculation. Plus, in the House Report accompanying the 1976 Act, it's clear that my reading is what was intended (although back then the awards were a lot lower!):
(1) As a general rule, where the plaintiff elects to recover statutory damages, the court is obliged to award between $ 250 and $ 10,000. It can exercise discretion in awarding an amount within that range but, unless one of the exceptions provided by clause (2) is applicable, it cannot make an award of less than $ 250 or of more than $ 10,000 if the copyright owner has chosen recovery under section 504(c)....
(3) Where the suit involves infringement of more than one separate and independent work, minimum statutory damages for each work must be awarded. For example, if one defendant has infringed three copyrighted works, the copyright owner is entitled to statutory damages of at least $ 750 and may be awarded up to $ 30,000.... Moreover, although the minimum and maximum amounts are to be multiplied where multiple "works" are involved in the suit, the same is not true with respect to multiple copyrights, multiple owners, multiple exclusive rights, or multiple registrations. This point is especially important since, under a scheme of divisible copyright, it is possible to have the rights of a number of owners of separate "copyrights" in a single "work" infringed by one act of a defendant.
But let me rephrase anyways, your whole legal system seem insane to a European (not just because of this issue, its the whole "You served me to hot|cold|whatever coffe, I'll sue!" way of life that seems wierd to alot of us).
What's wrong with US tort law? I mean, you're referencing the infamous McDonald's case, but have you actually read up on the details? Really, you should not buy into all the hype.
And also, define worse?
Terms based on authorial life instead of fixed times. Terms that are longer than 20-50 years in sum. Moral rights. Banning formalities for copyright protection to arise (i.e. not requiring people to apply for a copyright, have to provide notice, deposit copies, etc.). Insufficient exceptions. No first sale doctrine. Pushing the concept of minimum standards.
it allowed to reverse engineer codecs if its for compatility issues
IT IS NOT ILLEGAL AND YOU CANNOT BE PROSECUTED FOR DOWNLOADING MOVIES. ONLY FOR UPLOADING.
Actually it is illegal, and you can be sued civilly or in some cases even prosecuted. The relevant portion of the law is 17 USC 106(1) which prohibits reproduction. Downloading is a form of reproduction.
Napster was successfully sued ultimately because its users infringed by both uploading and downloading, and it helped them do it. It's hardly unique.
They could just as easily ask for $20 million if they wanted to. There's no requirement that they show any rationale to support the amount of damages at this stage.
At trial, the plaintiff would need to provide evidence to support their claim of damages. And the actual amount of damages would be determined by a jury. But at this stage, they can ask for however much they want.
Normally you might be correct. But not here.
There are two kinds of monetary damages available in copyright suits. The plaintiff can pick whichever one he prefers.
One is actual damages and profits, which would be more or less as you say, with the parties arguing over the number.
But the other is statutory damages. The plaintiff can ask for statutory damages and be awarded anything in the range of $700 - $30,000 per work. If the plaintiff can show the infringement was willful, the ceiling rises to $150,000 per work, which is the number above. If the defendant can show the infringement was 'innocent' (i.e. he didn't think he was infringing and had no reason to think so) the floor lowers to $200 per work. The plaintiff can more easily make their case than the defendant, for modifying the range of damages.
So the $150,000 number is a figure that has some real basis. Of course, the court has discretion within the ranges provided, but it's less contentious than it normally would be.
Slashdot Mirror
But only some? This means that there must be others. And you still haven't cited them. All you've done is rely on my cites. That's convenient, but I still want to see you provide your own citations to other cases that actually do support your reasoning.
Of course, I've been where you are. I've had situations where there was absolutely no precedent to support my case, and everything was against me (of course this was a case that was assigned to me, rather than something I undertook voluntarily). It's not fun. But I'm disappointed that you're not being open about it.
the "copies" are made on Russian servers located in Russia
There's no need for quotes. And yes, some copies are being made in Russia. But all that matters for the sake of infringement is that some copies are made in the US.
The copies made in the US are: RAM in which the downloaded information is fixed, and; hard drives and other non-volatile media in which the downloaded information is fixed.
Indeed. In that case, the only location at which this could happen is at the server, which is located in Russia, because, in order to send it over the wire, the data must first be copied into RAM.
Wow. That's an amazing misreading. I salute you.
The MAI court is saying that reproduction occurs when information is fixed into tangible media. In MAI, the issue was not whether that was the only way a copy could be made, but whether that was a way a copy could be made.
When Russians rip a CD (which is a copy) to a computer, copies are made of the ripping computer's RAM, and then of the hard drive to which the ripped music is ultimately saved. When serving that data, the RAM is once more a copy, as information is reproduced into it from the hard drive.
But the downloader's computer has its own RAM, and when information is fixed into it, it becomes yet another copy. Ditto for the downloader's hard drive.
The downloader's copies are in the US. The downloader is in the US. The action of fixing information into the copies took place in the US. This gives us good grounds to find infringing activity by the downloader in the US.
It is interesting, however, that you would then cite Marobie-FL v. NAFED, which has no bearing here:
Marobie-FL ultimately stands for the proposition that the downloader is responsible for his own willingly undertaken downloads. He is the factual cause of the download: but for the downloader, the infringement could not have taken place. He is the proximate cause of the download: It was his hand that initiated the process, and everything after that ran on automatic (automatic credit card processing is still automatic -- no human was involved).
Napster and Intellectual Reserve both stand for this point as well.
And of course, since copyright infringement is a strict liability offense civilly, it doesn't even matter what the downloader thought; only that it was he that did it.
I think it's a good point to bear in mind.
we get ourselves into a mess, since 17 USC 101 makes it clear that "copies" and "phonorecords" must be tangible objects
'We,' white man? This has been my point all along.
This simply bears out my thesis that there is confusion in the courts and the legislation about what a "copy" is. Courts define a "copy" as it is defined in 17 USC 101
Congress is, for purposes of statutory interpretation, almost totally incapable of being confused. When courts read law, they always assume that Congress chose every word, and placed every character, deliberately. If this leads to a conflict, the laws must be read in a way that they don't conflict. Only where this is completely imposs
For a look at his argument, and me blowing it out of the water, check out this branch of the thread.
Aside from that such an argument is nonsense -- you say there are cases. Cite them.
I can cite mine:
MAI v. Peak, 991 F.2d 511 (9th Cir. 1993)
Marobie-FL v. NAFED, 983 F. Supp. 1167 (N.D. Ill. 1997)
Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999).
A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001).
So, they make a copy and send it over the wire to me.
Which is impossible.
A copy is defined by the law, at 17 USC 101, as being a tangible object. If you've figured out how to send tangible objects via wire, then please demonstrate this absolutely stunning new technology, by, e.g. emailing me a glass of water.
Of course, that's not what's going on here. What's actually
No, in the law, a copy is a tangible medium within which a work is fixed. An mp3 is not a tangible medium, it's just information. You cannot hold an mp3, all by itself, in your hand.
If the mp3 is on a hard drive, then the copy is the hard drive. If it's in RAM, then the copy is the RAM. Etc.
So since you cannot cause a hard drive in Russia to get sucked into a wire and get popped out the other end, the copy is not being transferred. Instead, the downloader is placing the work into a second tangible medium, i.e. creating a second copy. That's reproduction.
Whether or not that second copying is illegal depends on whether or not copying for personal use is permitted under your laws - some places it is some it isn't.
In the US, all unauthorized reproduction of copyrighted works is illegal unless you fall within an applicable exception. There is no exception that covers all personal use.
If it would be legal for you to buy a cd in russia, bring it back to the US and then copy it to your HDD
That could easily be illegal in the US. It depends on specific information about who was involved with making the CD, and where. Importation of copies of copyrighted works is generally prohibited as a form of infringement. (And even where someone who thinks they are clever cites exceptions to this, let me note that those exceptions are usually not sufficient)
The trick is that that logic works both ways: Russian law can't apply to any parts of the transaction that occur outside of Russia. For a US downloader, since the sound recordings are only fixed in a tangible medium (i.e. the downloader's RAM, HD, etc.) by the downloader outside of Russia, it's US copyright law that applies to that, and our law says that it's illegal reproduction.
Just because at best it might have been legal to do so in Russia doesn't mean it's legal to do so here.
Have you ever been involved in a lawsuit?
Depends on what stage you're talking about. Everything I've been involved in got dropped or was settled before getting to court. But my legal career is still just getting started, so ask again sometime. Mostly though, I expect to be doing transactional work.
I'll defer to you on the methodology of the numbers, but you seem to have a rather positive view of the legal system.
Well, I'm a lawyer. Generally I find that when you study the system carefully for several years, you find that it's designed pretty sensibly, and that numerous alternatives tend to be considered and if rejected, for a good, if perhaps subtle, reason.
But it seems to me that it is subject to upfront agreements and forgive me if I'm somewhat jaded as to what reasonable means.
Well, sort of. Contingency fees are not available in some areas -- divorce proceedings, for example. But when they are, the decision as to whether to pay one is up to the client. They can always pay the up-front hourly fee, whether they win or lose, and keep the award to themselves. The worst a lawyer can do is not take a case of a client that comes in the door.
As for the reasonable amounts, 1/3 is the common practice. Sometimes fees might be paid in some form other than money (e.g. a business might pay in equity) but these sorts of things are on thin ice, and while sometimes allowable get watched closely.
Anyway, you might be interested to read the Rules of Professional Conduct. All jurisdictions have them, and lawyers are obligated to follow them or risk being sanctioned or disbarred. Bars generally require applicants to the bar to have either taken certain classes in them, or to have achieved certain scores on the Multistate Professional Responsibility Exam (which is distinct from the LSAT or Bar Exam).
No, I think that it's basically because they figured that it wouldn't significantly harm their business, but that it was safer to channel people who want to regulate them into that avenue rather than something more serious.
Personally, I think smoking anything is really dumb, and that we have plenty of better drug delivery systems, but this sort of ban is offensive to the first amendment.
1971, IIRC, and there was only ever one challenge, and it was at the time of passage. First amendment law has evolved since, but there don't seem to have been further challenges made with regards to this statute. If someone did make one, though, I think they'd win.
Those adds in effect are telling you their drugs are safe, with the caveat of all the often disturbingly dangerous side effects they quickly rush through at the end.
Which is to say, they are disclosing things.
Well in the cases of numerous drugs they are pushing it turns out they are in fact dangerous, they had the data that showed they were safe and they've been colluding with corrupt officials in the FDA to suppress it. The short list Bextra, Cresto, Meridia, Serevent and Vioxx.
Well, I don't know whether they're safe or not. If there's been corruption, then it should be rooted out. And if they aren't safe for use, then yes, it shouldn't be advertised. That still doesn't help with regards to your proposed ban as to all prescription drugs, since presumably some of them are safe, and were not approved wrongfully. You keep on tarring with too wide a brush.
But it would only be limited to such media. It could not be, as the earlier poster proposed, a total ban everywhere.
Plus, it is debatable as to whether the cigarette ban will hold up. It's not got a lot of precedent in favor of it. If challenged -- which is unlikely, IMO -- I think it would get overturned.
If there was a first amendment issue here then Congress couldn't have banned television and radio ads. At this point you are just hair splitting hairs trying to salvage an arguement you've lost. You may not like it but the precedent already exists for Congress and the FCC to ban advertising on TV and radio which is where the drug companies are pouring billions of dollars each year to the detriment of everyone(except the media raking in those ad dollars).
/. readers. The Internet is a great communications medium, and it doesn't take billions to use it. Start here, if nowhere else. I won't promise to agree with what you say, but I'm very happy that you can get it out there.
No, not really. Like I said, there's been a total of one challenge of this kind, and it's very old in light of the developments in first amendment law since. I don't think it would continue to hold up.
That said, I've lost nothing, and I'm splitting no hairs. Your original statement regarded all advertising, in all media. It was fatally overbroad, you might say.
Its equally bad, if not worse for coporations to be allowed to use their deep pockets to bombard us with often false information that is really bad for us.
I'm not defending that. I think that false commercial speech probably can be lawfully regulated and in fact that's what the caselaw says as well. But I don't think that the typical prescription drug ad on tv is false. Annoying, maybe, but that's it.
Where the information is truthful, why should it be kept from people?
For example the cigarette companies saturated TV, radio and movies with ads for their products in the '50's and '60's and suckered whole generations in to thinking it was cool to smoke. Millions of people died as a direct result of that advertising and the health care costs caring for them have run in to the hundreds of billions if not trillions. They also effectively suppressed the fact that they were pushing an addictive drug, so once people started they couldn't stop.
Yes, and provided that the millions of nicotine addicts were provided with assistance (probably via delivery systems that are better than the bizarre and obviously unhealthy practice of breathing in smoke!) I wouldn't even have a big problem with banning tobacco altogether. I'm not fan of cigarettes, and I find the prior actions of tobacco companies reprehensible. But provided they have a legal product, and they don't lie or mislead people about it, I see no basis for limiting their ability to advertise it.
You seem to be obsessed with fear of government propaganda and censorship buy you've seem completely indifferent to corporate propaganda and censorship through saturation.
I don't even understand what that last point is supposed to mean, but I'm willing to stand by the precept that speech which is for some reason merely objectionable should be countered by more speech, not by censorship. There are more avenues for speech now than ever before. If your message is worthwhile, whatever it is, you don't need to silence people in order to spread it.
I'm 100% with you on first amendment protections for individuals, but I draw the line at protecting the right of corporations to use their wealth for propaganda, deception and fraud.
Again, I'm quite against deception and fraud. What I'm for is the truth, whatever the subject.
I don't have billions of dollars to spend to run ads to counter the drug companies.
Your post here can be viewed by untold thousands of
Your doctor should be deciding if you need them
Actually, the patient should have the ultimate decision. If he wishes to follow his doctor's advice, and that is his doctor's advice, then that's fine. But doctors shouldn't get the last word in medical decisions whenever possible; they don't have to live with it.
Yes we did. Congress banned cigarette ads on television and radio in 1971 (the exact year I'm not sure of).
No, we didn't. You said advertising before, and I called you on it. You should have said, as you're saying now, that they banned _some_ advertising.
Presumably Congress might get away with it on broadcast media for drugs too, but that still couldn't affect any other media. And at any rate, I don't recall that there have been any challenges to 15 USC 1335 since about the time it was passed, so I wouldn't bet the farm on its constitutionality.
but there are have been no outright cigarette ads in the U.S. for 34 years
Except for outright cigarette ads on billboards, in magazines, store displays, etc. In fact, everywhere other than radio and TV.
Cigarette ads are still allowed in print
Not allowed; can't legally be disallowed.
You see thats the rub, it was never recognized that corporations had first amendment rights until the 1970's. The first amendment is well over 200 years old but somehow this right only sprung in to existence recently.
No, it always existed. It's just that the courts have only gotten good at civil rights cases in the 20th century. The 14th amendment was about a hundred years old before the courts finally started to recognize that it prohibited segregation. Does this mean that the civil rights cases from Brown on were wrong, because the whole line of cases in that vein didn't get decided during reconstruction, like they should have?
The fact that the wheels of justice turn slowly should not be misinterpreted to mean that justice is inappropriate.
Plus, if you bother to check, you'll find that one of the key reasons for first amendment proteection of commercial speech is to protect the public. For the government to paternalistically limit the free flow of factual information that the public can receive is bad for us.
As usual, the cure for objectional speech is not a ban, but to instead encourage more speech. If you don't like these ads, tell people so, and make your case to them. Then they can decide if they want to ignore them. But since you're not the boss of everyone else, you shouldn't make the decision for them.
If it is a first amendement violation explain to me how we outlawed advertising cigarettes, they are a regulated drug too.
We didn't. I see cigarette advertisements all the time.
Its also very much open to debate if corporate speech is protected by the First amendment.
No, the Supreme Court has repeatedly stated flat out that commercial speech is protected by the first amendment. They've been saying so for, oh, 30-40 years now, IIRC.
No, the lawyer only gets a percentage of the portion of the final award that is greater than the state's offer. So in your example where the state offers $1.7m and you get $2m, the lawyer gets 1/3 of the difference, i.e. $100k.
Also contingency fees are typically 1/3. They're usually not significantly lower, and are virtually never ever higher, since lawyers are only allowed to charge reasonable fees.
Of course, it's up to the client as to whether they want to hire a lawyer on contingency or not. They can always pay hourly fees up front, win or lose. Contingencies result in payments only if you win, and at the end of the case, but since the lawyer would be taking quite a risk, they can be higher.
If you want to bring drug prices under control in the U.S. the first really easy step is to outlaw advertising prescription drugs to the public.
That would of course violate the First Amendment. Want to try again, this time without ignoring crucial civil liberties?
Just compensation is a tricky term, the state decides and they have NO reason to make it fair or just. If you do not like that figure then you can always sue, sue the state that is. The cost of a suit with lawyers quickly convince most people to take the second offer made by the state. Not a fair fight.
That seems odd. I know that in some jurisdictions at least, the way fees in eminent domain cases are handled is that the attorney can work on contingency, taking a percentage of whatever amount he can get for the client, less the amount originally offered by the state.
So for example, if the state offers you $100,000, and he gets an award in court of $1 million, then he could get as much as $300,000, and you get $700,000.
Does CT not allow for contingencies in these cases?
Yes, but what invariably happens is that the valuation is disputed by the owner whose property is being condemned. This then moves the dispute into court because property cannot be taken lawfully without due process.
Each side brings their appraisors in to testify and the court decides what the actual fair value is. IME it's usually way above what the state wanted to pay initially. This results in either the state not wanting to pay, and therefore not taking the property, or having to pony up more.
If my recording of a television show is "fair use", then watching a downloaded copy and recording the original myself and then watching it are the same thing with the exception of who did the recording.
No, that's not necessarily true. Fair use requires a fairly complex analysis for each time it is alleged. While one can of course analogize taping off of the air (which may be fair sometimes, but is not necessarily always fair) to downloading (ditto), there's nothing to indicate that the analyses will come out the same. It may very well be that to a court, who did the recording is important.
I'm watching shows recorded from what are essentially freely available transmissions. And copyright lawyers aside, I'll keep doing so, with a clean conscience.
I'm a lawyer that works in the copyright field, but don't let me stop you. I don't really care all that much.
Bullshit. It's more likely first sale, if the tape was lawfully made to begin with. Only if that didn't apply would you ever resort to claiming that it was fair use.
Even recording for your own use is a copyright infringement, except that it has been found to be a permissible Fair Use. However, if you watch it more than once, that's illegal again.
No. Where the hell are you getting this, anyway? Private performance is not part of copyright; you can do it as much as you want.
So if you lawfully record it, i.e. if the infringing recording is noninfringing per fair use, then watch it all you like. (Of course, watching it a lot might indicate that it was a commercial substitute for something else, which plays into whether it was ever a fair use to begin with....)
Lending a VHS tape to a friend is illegal too,
Not if the copy was lawfully made. If it was lawfully made, it is then eligible for the first sale exception at section 109. Again though, this can have an affect on the lawfulness of the fair use analysis regarding the recording itself.
I'm afraid you are confused. It is illegal, except for those specific instances of downloading or uploading where it might happen to fall within an exception to copyright law. There is an important difference between lawfully recording it, and loaning out that specific copy to someone else and instead just putting it on a server for other people to download.
However, mine is a valid reading, i.e. taking 504(c)(2) to mean to raise the values in 504(c)(1) without affecting the rest of the calculation. Plus, in the House Report accompanying the 1976 Act, it's clear that my reading is what was intended (although back then the awards were a lot lower!):
But let me rephrase anyways, your whole legal system seem insane to a European (not just because of this issue, its the whole "You served me to hot|cold|whatever coffe, I'll sue!" way of life that seems wierd to alot of us).
What's wrong with US tort law? I mean, you're referencing the infamous McDonald's case, but have you actually read up on the details? Really, you should not buy into all the hype.
And also, define worse?
Terms based on authorial life instead of fixed times. Terms that are longer than 20-50 years in sum. Moral rights. Banning formalities for copyright protection to arise (i.e. not requiring people to apply for a copyright, have to provide notice, deposit copies, etc.). Insufficient exceptions. No first sale doctrine. Pushing the concept of minimum standards.
it allowed to reverse engineer codecs if its for compatility issues
That has nothing to do with copyright law.
IT IS NOT ILLEGAL AND YOU CANNOT BE PROSECUTED FOR DOWNLOADING MOVIES. ONLY FOR UPLOADING.
Actually it is illegal, and you can be sued civilly or in some cases even prosecuted. The relevant portion of the law is 17 USC 106(1) which prohibits reproduction. Downloading is a form of reproduction.
Napster was successfully sued ultimately because its users infringed by both uploading and downloading, and it helped them do it. It's hardly unique.
They could just as easily ask for $20 million if they wanted to. There's no requirement that they show any rationale to support the amount of damages at this stage.
At trial, the plaintiff would need to provide evidence to support their claim of damages. And the actual amount of damages would be determined by a jury. But at this stage, they can ask for however much they want.
Normally you might be correct. But not here.
There are two kinds of monetary damages available in copyright suits. The plaintiff can pick whichever one he prefers.
One is actual damages and profits, which would be more or less as you say, with the parties arguing over the number.
But the other is statutory damages. The plaintiff can ask for statutory damages and be awarded anything in the range of $700 - $30,000 per work. If the plaintiff can show the infringement was willful, the ceiling rises to $150,000 per work, which is the number above. If the defendant can show the infringement was 'innocent' (i.e. he didn't think he was infringing and had no reason to think so) the floor lowers to $200 per work. The plaintiff can more easily make their case than the defendant, for modifying the range of damages.
So the $150,000 number is a figure that has some real basis. Of course, the court has discretion within the ranges provided, but it's less contentious than it normally would be.