If the patent application was filed after June 7, 1995, the expiration date is 20 years from the date it was filed. If the application was filed by June 7, 1995 and issued before June 8, 1978, the expiration date is 17 years from issuance. If the application was filed by June 7, 1995 and issued after June 7, 1978, the term is the later of 17 years from issuance or 20 years from filing.
Anyway, doesn't this mean that, even if you buy legitimate material (like from iTMS or wherever), every router that it passes through infringes?
No.
Firstly, you're authorized to download it, and that implicitly would involve it going over the Internet to get to you, so it's sheltered by that authorization.
Secondly, the safe harbor at 17 USC 512 covers a lot of situations like this and can be used to protect those people in the middle, even where there was no authorization. Of course, in such a scenario, you, not being in the middle, are still in some trouble.
Although it kind of runs against the whole concept of downloading -- and therefore merely even looking at -- things via computer, I would advise you to expect that the law is going to follow the contours of common sense.
How does this all work with fair use?
Well, there's two bodies of thought with fair use.
The first is that it is a universal defense of equity that is available for anything that happens under Congress' copyright power (which is the ONLY power that can be used to grant copyrights -- other powers cannot, since it was specified as being in this one).
The other is that it is a defense to copyright infringement, but not to non-infringing acts that are nevertheless prohibited by Congress, whether under the copyright power or via other powers that are being used in a functionally equivalent manner. DMCA anti-circumvention is referred to as a paracopyright, meaning it's of this sort -- if you believe in all this.
In either event, as to downloading, that's traditional copyright law, and so fair use would certainly be a defense. But n.b. that each time you assert fair use, the court has to look at the specific facts and decide if it really is. No use can be said to always be fair or unfair. It depends on the totality of the circumstances each time. Thus some for-profit uses are fair, others are not. Some parodies are fair, others are not. A few trends might be visible, but I'd stick to running through the four-part analysis (see 17 USC 107) each and every time.
It seems very odd to me that copying a DVD bought from one store is perfectly legal, while copying an identical DVD bought from a different store (which makes its own unlicensed copies in the back) makes you infringe.
Well, I'm not sure I understand your example here. Still, I think in the context of the fair use analysis, what you mean is that you're thinking about the fourth factor.
If you make, say, a personal copy of a book (let's set aside DVDs to avoid complicating things with 17 USC 1201), and the master copy of the book you are using was one lawfully made by the copyright holder and lawfully came into your possession, then it has some, but little, economic impact on the copyright holder. After all, you paid once, and few people would pay twice. There's really no harm.
OTOH, if it's a pirated copy of a book, then even though what you're doing is the same, there is a greater economic impact since you didn't pay the copyright holder for the master copy. This could tilt the scales against you.
Remember, fair use is a matter of equity: you are basically appealing to the court's sense of fairness to let you do something that is against the letter of the law, but within the spirit of justice. If you have done something wrong, you're not going to get this kind treatment. It's reserved for people who do the right thing and only unfortunately run into conflict with the law. It might help to remember that the distinction between law and equity dates back to England: law courts did what the letter of a statute said. But you could appeal to equity courts -- basically the king, or his councilors -- who could override it in special cases for people who were sympathetic. In the US, we combined law and equity together into one court, but the latter is still only used in the last resort.
Or, if you like, think of the story of LaGuardia, who at one point was a judge,
Because the CTEA is retroactive in effect, and a challenge as to this point was heard by the Supreme Court and the law was still found constitutional.
You would have absolutely no luck in arguing otherwise, for the time being. You need a change: a change in the composition of the Court, a change in social attitudes sufficient to get them to decide otherwise the next time they hear it, or a change in the law.
Has it actually been decided what the legal definition of reproduction is?
Yes. 17 USC 106 sets forth the exclusive right to reproduce like so:
Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
17 USC 101 provides us with numerous definitions:
''Copies'' are material objects, other than phonorecords, 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. The term ''copies'' includes the material object, other than a phonorecord, in which the work is first fixed.
A ''device'', ''machine'', or ''process'' is one now known or later developed.
A work is ''fixed'' in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is ''fixed'' for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
''Phonorecords'' are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ''phonorecords'' includes the material object in which the sounds are first fixed.
Furthermore MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993), and the cases that are based on it, such as Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290 (D. Utah 1999), hold very plainly that due to the fact that most computers necessarily infringe even when displaying information because their architecture is such that the copyrighted work is unauthorizedly and illegally reproduced in RAM, which constitutes a new copy of the work, being a tangible object in which a work may be perceived.
Reproducing bits WITHIN the NIC, as well as to the hard drive, RAM, cache, procesor, etc. are all reproductions capable of infringment. It's a bizarre result, but that's what the law is right now. Please read through those cases and you'll see this.
And, incidentally, provided your DVD player has no memory onboard -- which it almost certainly does, being more complicated than an ancient record player -- while it is not illegal to buy such a DVD, it is illegal to make incidental reproductions in the act of watching it.
You are mistaken. Downloading is illegal as it constitutes a reproduction of the song, and reproduction is one of the rights which is exclusive to the copyright holder per 17 USC 106. Distribution is another exclusive right, but hardly the only one.
Well, it's fairly easy to get such a ruling, merely by having a potential defendent with sufficient standing file for a declaratory judgment. Jib Jab would probably be best for this, in fact.
Trademarks just have to be useful identifiers. Google can easily rename their service to any of a virtually infinite number of things, and get a mark for whichever they settle on.
You should NEVER get too attached to a mark; as long as it uniquely identifies a source, that's good enough.
Certainly there's no lack of companies around here with unusual names that while themselves unrelated to the business (e.g. Apple, Yahoo, Amazon, Kodak) are well known anyway.
You are wrong. Profits aren't an issue for fair use, though the effect on the market for the original work are. Take a look at the 'Pretty Woman' case that went to the Supreme Court back in the 90's.
Check out 17 USC 504(c). This is willful, too, so you're looking at $150,000.
Oh, and also check out 17 USC 506. There ARE and have been for over a century, criminal prosecutions for copyright infringement, and an argument could be made that this is one.
But it's not much of an issue. No, no court is going to find what you think they might. Not from merely the practice of giving something away for free -- there would have to be considerably more evidence presented by the infringer (who presumably would be sued by MS themselves) to manage this.
Seriously -- think realistically, man. If there was a suit, do you really see a court siding with one of the largest corporations around when the issue is whether they've been wronged, or with some scruffy computer users who seem to associate themselves with infringers?
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The first is the one that's the wash -- it's not a commercial use, but nor is it for a particularly good non-commercial use, such as educational or transformative uses might be.
The second is for MS -- the work is not factual, it is creative.
The third is for MS -- the entire work is being reproduced and distributed.
The fourth is for MS -- Even if the work is available for free, it diminishes whatever value MS sees in having themselves be the source of patches. This results in an economic harm to MS attributable to who the source of the work is. It is not a situation where MS isn't being competed against because they'd never have provided the work in that form to begin with, as is often the case with, e.g. parodies.
Also positive effects on the copyright holder are NOT part of the analysis. Only negative effects are a factor; this has been so held numerous times.
But then again, may be you are just a particularly clueless lawyer?
No, I'm not a lawyer at all. Didn't you see the.sig?
What would someone have to gain (commercially or financially) by sharing SP2 on a P2P network?
A P2P network that used the works as a 'draw' to expose users to advertising. The theory was discussed (in a non-criminal context) against Napster, IIRC. You don't have to be selling the work to derive some gain or advantage from doing so. Indirect methods that are sufficiently proximate will qualify as well.
or financial loss by the company at hand (Microsoft),
That's NOT a requirement. Hell, even if you could [b]prove[/b] that P2P sharing resulted in MS getting billions of dollars they otherwise wouldn't get, that would be irrelevant. It would not even be considered for a second at trial except to say that it doesn't matter. IIRC the Napster decision touched on that too. The defense team really did try damn near everything they could think of.
Even if you took a step back at what the sharer was intending to do with this action, there would be an exception.
WHICH exception? Cite the section so I can read it. Most of the interesting ones are at 17 USC 107-122, but they're mostly pretty narrow and specific and useless here.
But then, copyright infringement is both civil and criminal, and while you probably couldn't be prosecuted for this (unless you somehow ran into 17 USC 506(a)(1)), you could still be sued for a lot of money and an injunction.
A lot of people like to sound like they know what they are talking about on here, but they forget a little something called common sense.
Oh, I never said one was LIKELY to be sued. Most infringements never get noticed, and the tiny fraction that are never get pursued, and so forth. Very very few infringements result in legal action.
Nevertheless, even though you're probably not going to get in trouble, it's still illegal.
Sharing a free update is vastly different from sharing something like Windows XP itself, or a game.
No. The ONLY place that the difference is an issue in any way whatsoever is that 17 USC 506(1)(b) wouldn't apply. Other than that, free v. not-free is a non-issue, save in the rare case someone wants actual damages as opposed to statutory damages, or a fair use analysis would hinge upon it. It really is unimportant though.
The way copyright law works is that the copyright holder has the exclusive right to engage in certain activities.
He doesn't have to explicitly assert it; he just has it.
I mean, I can drive a car with no locks and a push-button for the ignition and you will STILL be stealing it if you take off with it.
If you reproduce that CD, even though there is nothing saying you can't, you are still breaking the law. And are a tremendous dumbass if you really think that an argument to the contrary will work for even five seconds if you get sued and go to court.
Well, that's all nice and all, but thoroughly detached from reality.
What will a court see? They will see that instead of one person infringing, e.g. by providing works on an ftp server, that now a mess of people are infringing, by working together in a knowing and concerted manner to provide bits of the work.
But it's still going to be infringing, all else being equal.
Under your terms, me downloading it and putting it on a cd is illegal. Under your terms, him coming to my house, using my computer, 'net connection, and CD burner to make himself a copy to install on his own box is totally legit. Under your terms, it would seem, if I'd already downloaded the SP for my own use, left the file on my computer, and he copies it to a cd, that's illegal, but if I delete the SP, then he redownloads it, that's legal.
Obviously, I'm not a lawyer, but it seems to me that this kind of differentiation is hazardous and irresponsible. The law should not be making these distinctions in this case. I would hope (though, not being a lawyer, I don't know if it's the case) if this were brought to bear in an actual legal challenge, the court would dismiss it as absurd.
Well, your downloading it yourself is also illegal, unless MS has given you permission to do so (for yourself) which appears to have happened.
So it's not really the law that's making the distinction; if I loan you my car to go to the drugstore to get me medicine, then you'd be acting illegally to do something else with it, such as to drive to Vegas, or to give the car to someone else to run the errand instead of you. That's pretty similar to the situation you have in your post.
What you need for your friend is either permission, which is what you're relying upon yourself, or an exemption in the law so that no permission is needed.
Fair use would be your best bet. HOWEVER, you can look at the four-part fair use test at 17 USC 107 and you'll see that it's difficult to say that it would be a fair use. After all, you'd be using the entire creative work in a non-transformative manner. The only thing that helps you is that it's already being given away for free, and the infringement in your hypo is fairly de minimis.
Personally, I think it would be a fair use, but it would NOT be absurd to find otherwise. It is in fact a somewhat narrow decision under the prevailing law and caselaw.
I would hope that equity would resolve itself in your favor there.
The problem is that any time fair use is invoked, the situation must be considered and judged based on its own facts. For people to share this on P2P nets when they clearly are NOT in the situation of your friend in being largely unable to get it legitimately does in fact change how things will shake out. Now, instead of looking as though he would use legal alternatives if at all possible, he just looks like a lazy SOB. Equity is only available for those with clean hands -- if you look bad, you're not going to be saved by it.
This looks bad, and it violates the law. That's not good.
Well, this is certainly a contender for the stupidest thing this week, but it's still early yet.
17 USC 106 tells us that the copyright holder has the exclusive right to reproduce and distribute their works.
Downloading is reproduction. See MAI Systems v. Peak Computer, 991 F.2d 511 (9th Cir. 1993), Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999), and A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001).
Uploading is distribution. See A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001).
Does it matter that MS is letting people download this from MS for free? No. They, and they alone have the right to decide whether, by whom, when, where, and how, their works will be distributed or reproduced.
Does fair use apply? Almost certainly not. Three of the four factors are against it, and the fourth is basically a wash.
Does any other exemption in copyright law apply? No.
So basically this is a perfect example of P2P nets being used to break the law. And it also shows that many users (and many/.ers around here) wouldn't know what is and isn't legal if it bit them in the face.
As a side-discussion, may I point out that in French law, someone who cultivates a field for long enough without being asked to leave it can claim property of the field after a -long- amount of time, even if this field does not belong to him at the beginning.
Yeah, all the countries with English common law do that too. It's called adverse possession. It's sort of half a statute of limitations on trespass to land, and half a way to resolve land disputes in favor of he who has been actively using and improving the land and generally otherwise acting like he's the owner anyway.
The times involved vary. Here in Massachusetts it's 20 years; IIRC some places are as low as 5 or 10 years.
In England there were four Inns of Court, which were legal societies and law schools in the sense that guilds trained their apprentices. Students sat on one side of the room, while the lawyers sat on the other side. Separating the two sides was a railing. That railing was LITERALLY the bar. No one could practice law without being permitted to cross from the one side to the other, which wouldn't happen until the existing lawyers felt a student was competent to practice law.
Likewise, once admitted to the bar, i.e. allowed to join the ranks of the lawyers, one could pass the bar in courtrooms, which is the railing that seperates the gallery where spectators may sit from the working area where the parties, lawyers, jurors, judge, etc. all are.
Freedom to speak is inclusive of the freedom to repeat what others have said; it is not limited to original speech.
Do you contend that freedom of speech does NOT pertain to your ability to edit public domain material? If not, then you must agree that free speech is involved here, it's just being limited as part of the copyright system. (or not, depending on the circumstances)
Because signatures are not required to have contracts. This should come as no surprise; people make enforcible verbal contracts routinely.
This is probably an adhesive contract, but those are generally perfectly valid.
Also, I'm a minor, how can I legally "sign" a contract?
By agreeing to it. Minors DO have the power to form contracts. The special treatment for minors is NOT that they aren't allowed to contract (for they are) but that minors can, if they choose, escape enforcement of contracts against them for anything other than necessities. This means that a minor can contract to, say, buy a car, and then can sue to ensure that the car is delivered to him, but cannot be sued to force him to pay for it. OTOH if it were a contract for food, he could be sued, since that's a necessity, and we want people to be willing to sell necessities to minors.
However, minors that avoid contracts they've made are generally under an equitable obligation to return goods, or value, to the other party so that they are not unjustly enriched by their special status. Also contracts you make as a minor but don't avoid by the age of majority are basically ratified and become completely binding.
People who say minors can't contract (in the US at least) simply don't know what the hell they're talking about.
Hell, you could even get your 4 year old daughter to click through the EULA for you.
Why? When you tell someone else to agree for you, it's still ultimately you that agreed.
Here is a good rule of thumb for legal situations: Do not be clever. Do not do clever things. Do not try to get away with stuff by adhering to the letter of the law in a patently transparent way. This is because no one is really as stupid as you must think they are if you think that will work, and it will in fact NEVER work.
As has been said, "the law is not an ass," and it will not only STILL get you when you're being clever, you will have only pissed it off and made things worse for yourself.
Slashdot Mirror
If the patent application was filed after June 7, 1995, the expiration date is 20 years from the date it was filed. If the application was filed by June 7, 1995 and issued before June 8, 1978, the expiration date is 17 years from issuance. If the application was filed by June 7, 1995 and issued after June 7, 1978, the term is the later of 17 years from issuance or 20 years from filing.
Anyway, doesn't this mean that, even if you buy legitimate material (like from iTMS or wherever), every router that it passes through infringes?
No.
Firstly, you're authorized to download it, and that implicitly would involve it going over the Internet to get to you, so it's sheltered by that authorization.
Secondly, the safe harbor at 17 USC 512 covers a lot of situations like this and can be used to protect those people in the middle, even where there was no authorization. Of course, in such a scenario, you, not being in the middle, are still in some trouble.
Although it kind of runs against the whole concept of downloading -- and therefore merely even looking at -- things via computer, I would advise you to expect that the law is going to follow the contours of common sense.
How does this all work with fair use?
Well, there's two bodies of thought with fair use.
The first is that it is a universal defense of equity that is available for anything that happens under Congress' copyright power (which is the ONLY power that can be used to grant copyrights -- other powers cannot, since it was specified as being in this one).
The other is that it is a defense to copyright infringement, but not to non-infringing acts that are nevertheless prohibited by Congress, whether under the copyright power or via other powers that are being used in a functionally equivalent manner. DMCA anti-circumvention is referred to as a paracopyright, meaning it's of this sort -- if you believe in all this.
In either event, as to downloading, that's traditional copyright law, and so fair use would certainly be a defense. But n.b. that each time you assert fair use, the court has to look at the specific facts and decide if it really is. No use can be said to always be fair or unfair. It depends on the totality of the circumstances each time. Thus some for-profit uses are fair, others are not. Some parodies are fair, others are not. A few trends might be visible, but I'd stick to running through the four-part analysis (see 17 USC 107) each and every time.
It seems very odd to me that copying a DVD bought from one store is perfectly legal, while copying an identical DVD bought from a different store (which makes its own unlicensed copies in the back) makes you infringe.
Well, I'm not sure I understand your example here. Still, I think in the context of the fair use analysis, what you mean is that you're thinking about the fourth factor.
If you make, say, a personal copy of a book (let's set aside DVDs to avoid complicating things with 17 USC 1201), and the master copy of the book you are using was one lawfully made by the copyright holder and lawfully came into your possession, then it has some, but little, economic impact on the copyright holder. After all, you paid once, and few people would pay twice. There's really no harm.
OTOH, if it's a pirated copy of a book, then even though what you're doing is the same, there is a greater economic impact since you didn't pay the copyright holder for the master copy. This could tilt the scales against you.
Remember, fair use is a matter of equity: you are basically appealing to the court's sense of fairness to let you do something that is against the letter of the law, but within the spirit of justice. If you have done something wrong, you're not going to get this kind treatment. It's reserved for people who do the right thing and only unfortunately run into conflict with the law. It might help to remember that the distinction between law and equity dates back to England: law courts did what the letter of a statute said. But you could appeal to equity courts -- basically the king, or his councilors -- who could override it in special cases for people who were sympathetic. In the US, we combined law and equity together into one court, but the latter is still only used in the last resort.
Or, if you like, think of the story of LaGuardia, who at one point was a judge,
Because the CTEA is retroactive in effect, and a challenge as to this point was heard by the Supreme Court and the law was still found constitutional.
You would have absolutely no luck in arguing otherwise, for the time being. You need a change: a change in the composition of the Court, a change in social attitudes sufficient to get them to decide otherwise the next time they hear it, or a change in the law.
Yes. 17 USC 106 sets forth the exclusive right to reproduce like so:
17 USC 101 provides us with numerous definitions:
Furthermore MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993), and the cases that are based on it, such as Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290 (D. Utah 1999), hold very plainly that due to the fact that most computers necessarily infringe even when displaying information because their architecture is such that the copyrighted work is unauthorizedly and illegally reproduced in RAM, which constitutes a new copy of the work, being a tangible object in which a work may be perceived.
Reproducing bits WITHIN the NIC, as well as to the hard drive, RAM, cache, procesor, etc. are all reproductions capable of infringment. It's a bizarre result, but that's what the law is right now. Please read through those cases and you'll see this.
And, incidentally, provided your DVD player has no memory onboard -- which it almost certainly does, being more complicated than an ancient record player -- while it is not illegal to buy such a DVD, it is illegal to make incidental reproductions in the act of watching it.
You are mistaken. Downloading is illegal as it constitutes a reproduction of the song, and reproduction is one of the rights which is exclusive to the copyright holder per 17 USC 106. Distribution is another exclusive right, but hardly the only one.
That's great, but who the hell cares about design copyrights? That provision only pertains to 17 USC 1301 et seq. -- not all or even most copyrights.
Actually, US copyright law has been civil and criminal since the late 19th century.
Well, it's fairly easy to get such a ruling, merely by having a potential defendent with sufficient standing file for a declaratory judgment. Jib Jab would probably be best for this, in fact.
Truly random? Well, you could always buy a copy of "A Million Random Digits" but I still don't think it would work out well for you. ;)
Trademarks just have to be useful identifiers. Google can easily rename their service to any of a virtually infinite number of things, and get a mark for whichever they settle on.
You should NEVER get too attached to a mark; as long as it uniquely identifies a source, that's good enough.
Certainly there's no lack of companies around here with unusual names that while themselves unrelated to the business (e.g. Apple, Yahoo, Amazon, Kodak) are well known anyway.
You are wrong. Profits aren't an issue for fair use, though the effect on the market for the original work are. Take a look at the 'Pretty Woman' case that went to the Supreme Court back in the 90's.
Check out 17 USC 504(c). This is willful, too, so you're looking at $150,000.
Oh, and also check out 17 USC 506. There ARE and have been for over a century, criminal prosecutions for copyright infringement, and an argument could be made that this is one.
Well, that was a somewhat odd post.
But it's not much of an issue. No, no court is going to find what you think they might. Not from merely the practice of giving something away for free -- there would have to be considerably more evidence presented by the infringer (who presumably would be sued by MS themselves) to manage this.
Seriously -- think realistically, man. If there was a suit, do you really see a court siding with one of the largest corporations around when the issue is whether they've been wronged, or with some scruffy computer users who seem to associate themselves with infringers?
The four fair use factors are:
.sig?
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The first is the one that's the wash -- it's not a commercial use, but nor is it for a particularly good non-commercial use, such as educational or transformative uses might be.
The second is for MS -- the work is not factual, it is creative.
The third is for MS -- the entire work is being reproduced and distributed.
The fourth is for MS -- Even if the work is available for free, it diminishes whatever value MS sees in having themselves be the source of patches. This results in an economic harm to MS attributable to who the source of the work is. It is not a situation where MS isn't being competed against because they'd never have provided the work in that form to begin with, as is often the case with, e.g. parodies.
Also positive effects on the copyright holder are NOT part of the analysis. Only negative effects are a factor; this has been so held numerous times.
But then again, may be you are just a particularly clueless lawyer?
No, I'm not a lawyer at all. Didn't you see the
What would someone have to gain (commercially or financially) by sharing SP2 on a P2P network?
A P2P network that used the works as a 'draw' to expose users to advertising. The theory was discussed (in a non-criminal context) against Napster, IIRC. You don't have to be selling the work to derive some gain or advantage from doing so. Indirect methods that are sufficiently proximate will qualify as well.
or financial loss by the company at hand (Microsoft),
That's NOT a requirement. Hell, even if you could [b]prove[/b] that P2P sharing resulted in MS getting billions of dollars they otherwise wouldn't get, that would be irrelevant. It would not even be considered for a second at trial except to say that it doesn't matter. IIRC the Napster decision touched on that too. The defense team really did try damn near everything they could think of.
Even if you took a step back at what the sharer was intending to do with this action, there would be an exception.
WHICH exception? Cite the section so I can read it. Most of the interesting ones are at 17 USC 107-122, but they're mostly pretty narrow and specific and useless here.
Because it's not a criminal action.
That's true.
But then, copyright infringement is both civil and criminal, and while you probably couldn't be prosecuted for this (unless you somehow ran into 17 USC 506(a)(1)), you could still be sued for a lot of money and an injunction.
A lot of people like to sound like they know what they are talking about on here, but they forget a little something called common sense.
Oh, I never said one was LIKELY to be sued. Most infringements never get noticed, and the tiny fraction that are never get pursued, and so forth. Very very few infringements result in legal action.
Nevertheless, even though you're probably not going to get in trouble, it's still illegal.
Sharing a free update is vastly different from sharing something like Windows XP itself, or a game.
No. The ONLY place that the difference is an issue in any way whatsoever is that 17 USC 506(1)(b) wouldn't apply. Other than that, free v. not-free is a non-issue, save in the rare case someone wants actual damages as opposed to statutory damages, or a fair use analysis would hinge upon it. It really is unimportant though.
So?
The way copyright law works is that the copyright holder has the exclusive right to engage in certain activities.
He doesn't have to explicitly assert it; he just has it.
I mean, I can drive a car with no locks and a push-button for the ignition and you will STILL be stealing it if you take off with it.
If you reproduce that CD, even though there is nothing saying you can't, you are still breaking the law. And are a tremendous dumbass if you really think that an argument to the contrary will work for even five seconds if you get sued and go to court.
Well, that's all nice and all, but thoroughly detached from reality.
What will a court see? They will see that instead of one person infringing, e.g. by providing works on an ftp server, that now a mess of people are infringing, by working together in a knowing and concerted manner to provide bits of the work.
But it's still going to be infringing, all else being equal.
Under your terms, me downloading it and putting it on a cd is illegal. Under your terms, him coming to my house, using my computer, 'net connection, and CD burner to make himself a copy to install on his own box is totally legit. Under your terms, it would seem, if I'd already downloaded the SP for my own use, left the file on my computer, and he copies it to a cd, that's illegal, but if I delete the SP, then he redownloads it, that's legal.
Obviously, I'm not a lawyer, but it seems to me that this kind of differentiation is hazardous and irresponsible. The law should not be making these distinctions in this case. I would hope (though, not being a lawyer, I don't know if it's the case) if this were brought to bear in an actual legal challenge, the court would dismiss it as absurd.
Well, your downloading it yourself is also illegal, unless MS has given you permission to do so (for yourself) which appears to have happened.
So it's not really the law that's making the distinction; if I loan you my car to go to the drugstore to get me medicine, then you'd be acting illegally to do something else with it, such as to drive to Vegas, or to give the car to someone else to run the errand instead of you. That's pretty similar to the situation you have in your post.
What you need for your friend is either permission, which is what you're relying upon yourself, or an exemption in the law so that no permission is needed.
Fair use would be your best bet. HOWEVER, you can look at the four-part fair use test at 17 USC 107 and you'll see that it's difficult to say that it would be a fair use. After all, you'd be using the entire creative work in a non-transformative manner. The only thing that helps you is that it's already being given away for free, and the infringement in your hypo is fairly de minimis.
Personally, I think it would be a fair use, but it would NOT be absurd to find otherwise. It is in fact a somewhat narrow decision under the prevailing law and caselaw.
I would hope that equity would resolve itself in your favor there.
The problem is that any time fair use is invoked, the situation must be considered and judged based on its own facts. For people to share this on P2P nets when they clearly are NOT in the situation of your friend in being largely unable to get it legitimately does in fact change how things will shake out. Now, instead of looking as though he would use legal alternatives if at all possible, he just looks like a lazy SOB. Equity is only available for those with clean hands -- if you look bad, you're not going to be saved by it.
This looks bad, and it violates the law. That's not good.
SP2 is a free update. If I download it, put it on a CD, and give it to someone else to install, it's not illegal.
Oh yes it is. Reproduction and distribution are both exclusive to the copyright holder per 17 USC 106.
In that example, you are reproducing it probably beyond what MS has given you permission to do, and are definately distributing it without permission.
So that's illegal.
It doesn't matter if it's free. Free is a total non-issue.
Well, this is certainly a contender for the stupidest thing this week, but it's still early yet.
/.ers around here) wouldn't know what is and isn't legal if it bit them in the face.
17 USC 106 tells us that the copyright holder has the exclusive right to reproduce and distribute their works.
Downloading is reproduction. See MAI Systems v. Peak Computer, 991 F.2d 511 (9th Cir. 1993), Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999), and A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001).
Uploading is distribution. See A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001).
Does it matter that MS is letting people download this from MS for free? No. They, and they alone have the right to decide whether, by whom, when, where, and how, their works will be distributed or reproduced.
Does fair use apply? Almost certainly not. Three of the four factors are against it, and the fourth is basically a wash.
Does any other exemption in copyright law apply? No.
So basically this is a perfect example of P2P nets being used to break the law. And it also shows that many users (and many
As a side-discussion, may I point out that in French law, someone who cultivates a field for long enough without being asked to leave it can claim property of the field after a -long- amount of time, even if this field does not belong to him at the beginning.
Yeah, all the countries with English common law do that too. It's called adverse possession. It's sort of half a statute of limitations on trespass to land, and half a way to resolve land disputes in favor of he who has been actively using and improving the land and generally otherwise acting like he's the owner anyway.
The times involved vary. Here in Massachusetts it's 20 years; IIRC some places are as low as 5 or 10 years.
Uh, the 'bar' is not an acronym.
In England there were four Inns of Court, which were legal societies and law schools in the sense that guilds trained their apprentices. Students sat on one side of the room, while the lawyers sat on the other side. Separating the two sides was a railing. That railing was LITERALLY the bar. No one could practice law without being permitted to cross from the one side to the other, which wouldn't happen until the existing lawyers felt a student was competent to practice law.
Likewise, once admitted to the bar, i.e. allowed to join the ranks of the lawyers, one could pass the bar in courtrooms, which is the railing that seperates the gallery where spectators may sit from the working area where the parties, lawyers, jurors, judge, etc. all are.
Freedom to speak is inclusive of the freedom to repeat what others have said; it is not limited to original speech.
Do you contend that freedom of speech does NOT pertain to your ability to edit public domain material? If not, then you must agree that free speech is involved here, it's just being limited as part of the copyright system. (or not, depending on the circumstances)
First, how is it a contract if I didn't sign it?
Because signatures are not required to have contracts. This should come as no surprise; people make enforcible verbal contracts routinely.
This is probably an adhesive contract, but those are generally perfectly valid.
Also, I'm a minor, how can I legally "sign" a contract?
By agreeing to it. Minors DO have the power to form contracts. The special treatment for minors is NOT that they aren't allowed to contract (for they are) but that minors can, if they choose, escape enforcement of contracts against them for anything other than necessities. This means that a minor can contract to, say, buy a car, and then can sue to ensure that the car is delivered to him, but cannot be sued to force him to pay for it. OTOH if it were a contract for food, he could be sued, since that's a necessity, and we want people to be willing to sell necessities to minors.
However, minors that avoid contracts they've made are generally under an equitable obligation to return goods, or value, to the other party so that they are not unjustly enriched by their special status. Also contracts you make as a minor but don't avoid by the age of majority are basically ratified and become completely binding.
People who say minors can't contract (in the US at least) simply don't know what the hell they're talking about.
Hell, you could even get your 4 year old daughter to click through the EULA for you.
Why? When you tell someone else to agree for you, it's still ultimately you that agreed.
Here is a good rule of thumb for legal situations: Do not be clever. Do not do clever things. Do not try to get away with stuff by adhering to the letter of the law in a patently transparent way. This is because no one is really as stupid as you must think they are if you think that will work, and it will in fact NEVER work.
As has been said, "the law is not an ass," and it will not only STILL get you when you're being clever, you will have only pissed it off and made things worse for yourself.