The federal constitution is always supreme. Under that are federal statutes and treaties, which are on an equal basis, but the most recently passed always controls (just as with any other laws not superior or inferior to one another). Then there's various administrative rules, and so forth, beneath all that.
Copyright only covers using someone else's work. You can't do that by accident.
Actually, you very easily can. Also, use is not at all covered by copyright. Reproduction, distribution, the creation of derivatives, and public performance or display, and a few other things are what are covered by copyright.
Though I will grant you that there is no infringement where you independently created a work.
Patents cover a specific way of doing things
No, that would be a process patent, and there are other kinds of patents. Patents can also preclude your merely having certain substances or machines, regardless of what you're doing with them.
you can't check every little thing that comes off the top of your head
Sure you can. There's a good search engine at uspto.gov. You're saying that it is impractical; that you could be doing something else. I agree, but that doesn't mean that it's impossible for you to be cautious. Only that you had the option and chose not to be.
there's the submarine patents that pop up a couple years after your 'infringing' work is on the market.
That practice has AFAIK largely been put to rest with the change of the effective date of patents being from filing, rather than from grant.
In the case of EULA, the minor got nothing for "agreeing". It wasn't presented before delivery of goods, after all. All he "got" was the box open (a box which, along with all of its contents, he had already paid for). So to exit the contract, he can just seal the box again...
No, the idea is that he got the goods. The goods were delivered subject to his future agreement to the remaining terms. I don't necessarily believe that this ought to happen, but there is at least ARGUABLY by the other side, something in exchange for agreement. Since in the absence of agreement, he can't keep the software at all, and has to go get his money back.
(Opening a box in the privacy of my home is not "sufficient to show agreement" if the other party cannot see me. Nothing has been "shown"- incommuincato persons cannot enter a contract*)
I find that doubtful, but I don't have my copy of the UCC in front of me, and I don't have time to look to see what it has to say on the subject. Given its general nature though, I see no reason why one cannot show agreement in private. I strongly doubt it means to literally jump up and down and yell out "I agree! I agree!"
If ProCD stands, vendors of any nontrivial product (durable good) will have the power to revoke usage at any time, by making arbitrary new demands that had not even been concieved when the sale was transacted.
No, I don't think it would work at any time -- it's an efficiency measure. It's impractical to discuss terms in the store, so they're discussed as soon as you have a real chance to dig into them. Showing up a year later and asking for user's first-born isn't at likely to fly IMO. (though contracts that permit later unilateral alteration of the contract is something that I am not prepared to discuss right now in either direction)
But it is impossible to prove a patent is valid. For example, if two people used the invention prior to the patentee inventing it, then the patent is invalid. But for all we know, those people live in the middle of fly over country, and never told anyone (though never tried to conceal, either) what they had done. No one should be required to have known about that. But once someone DOES find out, no matter who that person is, the patent needs to be invalidated. If you say, at any time, that it's valid, you're basically barring the later invalidation of the patent when new information is discovered.
All that a patent from the PTO means is that the patent is presumed to be not invalid; not actually valid. And it is a rebuttable presumption, though I think it needs to be more easily rebuttable.
Many things limit contract law, including age of the customer... and as it happens, very many game buyers are too young to enter contracts.
Just because you are a minor, that does not prevent you from entering into contracts. It just means that in some situations, you can get out of the contract -- though you likely as not will have to give back whatever you got from the other person, so as not to result in an injustice to him.
The idea that minors can't contract is an unfortunate myth.
It is plenty obvious that the ProCD decision will be struck down as soon as its elevated to a court with half a brain.
That's fairly inappropriate. I disagree with the decision, but Judge Easterbrook, who wrote the decision, and the other members of the 7th Cir. are hardly dumb. At any rate, as far as I've seen, while the issue is not settled, ProCD is the leading case, and it is what courts are probably going to adhere to.
Any judge who considers the implications of entering into an arbitrary contract by tearing open a box or "Click 'I Agree' to install" will be horrified.
Well, it's quite clear that you've never bothered to READ the ProCD opinion itself, despite your insulting the court. Even the ProCD case takes pains to point out that EULAs will need to offer a meaningful choice to reject the terms once they're available. For the EULAs to be effective, you need to be able to say no, and to then return the software for a refund.
After the inevitable happens* and the foundations of software EULAs are shattered, there will be no way contract law can apply to game sales. They'd have to sit you down at the counter and sign paperwork before handing you the box... and that extra work (and blatant customer-hostility) would be such a drain on sales it'd outweigh any supposed benefit of prohibited resale.
Still possible, though. If you get rid of after-the-fact contracts with non-merchants (which personally, I think the UCC generally does, as I agree with, I think it's the Kloeck decision out of D. Kan. that goes against ProCD), that just means that an adhesive EULA is literally adhered to the outside of the box. But there's no real difference. Plus that would have ramifications, as ProCD points out, for a lot of other after-the-fact contracts, such as those found with airline tickets.
If you get rid of adhesive contracts altogether, THEN people need to sit down and hash things out. Though I bet it'd still be impossible to bargain.
I think it's probably better to, for now, cut out adhesive contracts with regards to copyrighted works alone, but not to other things. Though that might imperil the GPL et al.
What lawyers? Patent examiners don't have to be lawyers; they just have to a) be skilled in some sort of hard science, and b) pass the patent bar (which basically tests one's knowledge of science, as well as a few laws and regulations, but only the ones related to the PTO, and not the law generally).
I know several non-lawyers that passed the patent bar. It's hard no matter what, but it's perfectly doable. Most lawyers, OTOH, could never even qualify to sit for it, not having the requisite background, much less have a chance in hell at passing.
Actually, that's not really right in either respect.
With both patents and copyrights, the number of areas one is excluded from are really fairly large. For example, you are not allowed to publicly perform works, though that is not a copy in the eyes of the law, nor are you allowed to import them in various manners, which also isn't even vaguely related to copying. Likewise, patents deal with many issues related to inventions.
However, since all patents are on file, there's no reason for people to accidently infringe on a patent. They can and should know that it exists; they're just not checking. But ignorance is never an excuse.
But society would also win out because ideas are being taken advantage of by SOMEONE, rather than being sat on by inventors who not only lack working capital, but who will never get it. (if for no other reason than that it would be profitable to capitalize on the invention, but not enough so as to pay the inventor to boot) Plus you forget that there have always been inventions, and that some people will invent regardless of their own ability or desire to implement their inventions. E.g. Salk didn't want a patent on the polio vaccine -- he wanted to stop polio, and didn't care how that was accomplished, or whether he'd profit thereby.
So now the question becomes, would society win out more than it would lose out, or vice versa? Then, rather than just using this simple pro/con arithmetic to decide whether to keep the extant patent system or shut it all down, use it to consider all possible variations of the patent system against each other, as well as against shutting it all down.
Somewhere in there, probably not where we are now, is the system that would have society win out the most, even after subtracting where we've lost out in the process.
Why shouuld our tax dollars pay examiners who are literally unable to do their job?
First, the job of the PTO is NOT to find valid patents. No one ever, anywhere, anyhow, can prove patent validity. You would literally need to be omniscient, and I guess I must not be, 'cos I don't know who is that we might get to work there.
Second, don't fear, your tax dollars DON'T pay for the PTO. They fund themselves. In fact, they turn a profit, and have been getting raided by other parts of the government, which is more or less where the present crisis comes from. If they could keep their money, they could generally afford to do a good job of things.
Let's eliminate patent prosecution and have it ALL go to the courts.
Because that would spectacularly not only NOT solve the imaginary problems you think we have, it would CAUSE some of them. Talk about an ass-backwards solution!
The PTO at least has experts. Courts don't know this crap from Adam, and you're never going to make them learn. Even the Fed. Cir. isn't _that_ good.
PLUS the courts ARE funded out of your tax dollars, AND are even more backlogged than the PTO is! So you would be totally fucking up an entire branch of the government, and paying through the nose for it, and not having swifter or superior patent regimes.
It is frankly, the stupidest idea I've heard all week.
At least inventors wouldn't have to pay thousands to a patent scribe to draft a patent. They would do it themselves, and only hire an attorney when they seek enforcement/invalidity/whatever.
Of course, EACH AND EVERY ONE OF THOSE PATENTS WOULD BE FACIALLY INVALID. Because patents have to conform to very precise requirements of disclosure, for a start, and I guarantee you that no inventor is going to know how to do it.
And if they can't do it RIGHT then it is imperative that they not get a patent, because they have utterly failed to describe their invention so that 1) other people know what it is and can avoid infringing on it, 2) other people know what it is and won't try to patent it again, 3) other people know what it is and can use it to better society. It is very very very hard for lawyers that specialize in this to write a good patent.
My confidence in inventors -- who specialize in inventing stuff, not in writing complex legal documents -- to be able to do this is absolutely nil. Less than nil perhaps.
Well duh. It's impossible to prove patent validity. Even courts can't do that. There could always be some heretofore unknown prior art or other defect in the patent rendering it invalid.
Look through some judicial decisions, and you'll see that even when the patentee wins, all he wins is that his patent is -- as far as THIS challenge goes -- not invalid.
Could be invalid as to the next, better, challenge, however. You can never tell.
It's really nowhere near enough time. Patents are extremely complex, and are often written in a somewhat obfuscated manner to the degree that that's possible.
Plus, of course, the examiner has to be qualified in the field the patent is being applied for; you don't put civil engineer examiners in charge of applications for biotechnology inventions. So there are likely some even more overburdened examiners, since the load cannot be evenly distributed.
You also don't realize that this isn't a matter of looking at one patent all day. Examiners also have to hold meetings to discuss any remediable defects with the applicant, read through revisions of the application, etc. So it's less than you'd think; prosecution of a patent takes on average 18 months to 3 years, IIRC, in part because there is a back and forth with the applicant. It's hard to know an invention thoroughly that you've only looked at for a few hours over a couple years.
AND you cannot blame the PTO for allowing some of the patents we've seen in recent years. They're obligated by law to grant patents unless there's a good reason not to. And worse yet, once granted, it's actually really hard to find inventions unpatentable.
What's needed is more money for the PTO so they can hire more examiners, increased publication requirements, permanent best mode disclosures by damn near everyone, and reduced burdens for challenges to patents (such as using the preponderance of the evidence standard, and being able to reexamine PTO prior art).
People who are able to represent the overall public interest: the one that doesn't care what inventors think, so long as it is overall a good system for the public.
Right now I see the equivalent of getting the movie, book, software, and record industries together to write copyright law. Which in fact, is what has been happening all through the 20th century, and it's consistently fucked over the public.
No matter how enlightened their self interest is, it's THEIR self interest. The patent system is supposed to satisfy the self interest of the PUBLIC.
How much piracy has to go on before people stop so that the record companies stop these last-ditch efforts?
Too little, clearly. I'm fairly convinced, seeing what satisfies people, that the way to go is to make whatever natural persons do not for commercial gain noninfringing. Although there will be a reduction in the public happiness that arises out of original works being created, it will substantially increase the public happiness that arises out of derivative works being created, and of being able to do more with works, and get more works for your money. And public happiness is EVERYTHING with regards to copyright. After all, if you're asking the public to permit laws passed that restrict them, and to abide by them, then they'd damn well better gain more from such a regime than they'd lose, or else it would be purely stupid of them to aquiece.
The artists are completely ignored in this equation
Well, duh. That's like saying that, in setting regulations as to the sale of dairy products, that no one asked the cows what they think of the whole deal. Artists are not important with regards to copyright; they should not have any special influence on policy. The only group that matters is the public at large -- how can we best make them happy, when we know that the two equal things they like are having more works created, and having those works be unrestricted and at no cost.
Absolutely nothing justifies ripping an artist off.
But remember that being an artist absolutely doesn't justify having copyrights at all, or of any particular nature. All copyrights are granted to artists -- they're not inherent. So when we give artists less, nothing they have a right to is being taken from them. They don't magically deserve copyright. They have to EARN it in ways that maximize the public good.
Well, of course it is a right you can sign away, at least to some extent.
What you're missing is that first sale is not YOUR right. It is merely a limitation on the copyright holder. It says: your copyright, mister author, does not all by itself let you control sales of lawfully made copies of your book after you've sold it.
But it doesn't say you, the reader, have an absolute right to resell. Nor does it say that the author cannot use OTHER means to achieve something similar in practice. Merely that he is limited in how much he can use copyright.
You see, you have NO rights conveyed in the copyright statute that have to do with your ability to resell copies. Rather, the source of your right to do so stems from the law of property. So your right to sell a book used is basically EXACTLY the same as your right to sell a car used, or a piece of land, or whatever.
And that is a right that can be subject to restraints on alienability. Admittedly, courts don't much like such restraints, but to a degree they're prepared to accept them. Provided that your gaining posession of a game was construed as a sale -- and that's a big if these days -- then it's true that they couldn't bar you from resale forever, but I bet they could for long enough that it wouldn't make a difference to you. And if it was construed as merely a lease or something, then you're pretty screwed altogether.
Consider me rude if you like, but your problem is that you are not bothering to look into this. You are just standing by the position you like best and deciding that just because you like it, it must be right, and you're unassailable. I suggest you wise up if you really want to stop this sort of trend, because right now you're too deluded to do anyone a lick of good.
No, that's wrong. You're not looking beyond basically the name of the doctrine.
While there are of course, limits to how far restraints on alienability can go, generally there can be at least some. This is true for any kind of property, and while a copyrighted work is not property, any given copy of that work -- such as a game CD -- most decidedly is.
All the First Sale doctrine says is that AS A MATTER OF COPYRIGHT LAW the copyright holder can only control the first sale. BUT FIRST SALE DOES NOT LIMIT CONTRACT LAW, which may be able to provide for one not being allowed to resell something if you agree to such a valid contract. The key difference is that the exclusive right to distribute (which first sale limits) is automatic for the duration of the copyright, whereas a contractual limit on alienation must be explicitly set up and agreed to, and is applicable to anything that you can have a contract for, as opposed to just creative works.
So do you have any laws that ACTUALLY prohibit them from doing that? Or are you just some schmuck that can parrot a couple of things he's heard secondhand, and still get it wrong?
EULAs have been upheld in court on numerous occassions. The leading case in favor of EULAs is the ProCD case. You may want to look it up. But do note that there is some dispute about them -- there was a case against Gateway, in D. Kan. that went the other way, in a more convincing manner, IMO.
arguably makes it illegal to play the game because that requires that a "copy" be made in the machine's RAM.
Well, if an enforcable EULA attempted to limit later disposition of the game, and said nothing, or specifically exempted, copies and adaptations needed to run the game oneself, how would it touch on this.
Though I maintain that a running copy is not a true copy.
Well, the restriction is on reproduction. Copying enough, but not all, would count. And making an adaptation is arguably the making of a derviative work, and that's also prohibited -- save for when the 117 exemption is available.
Well, MAI -- and the Utah Lighthouse Ministry v. Intellectual Reserve case that comes from MAI -- don't distinguish between data and programs. If it is on a computer, they hold, new copies are made when anything goes from network to hard drive, hard drive to RAM, RAM to cache, etc. Each physically distinct piece of memory is a seperate medium. Since a copy is a medium embodying a work (see 17 USC 101), each one is a seperate copy.
When you download, you are making at least one new copy. Qualtiy King is merely the only case I know off the top of my head involving even dicta about 602, and there is some. The copies were talking about are piratical, per 602(b) because they could not be made legally under US law. 602(a) doesn't save it, because both sections only deal with who can act to stop it -- not overall legality.
No, you're just not reading the law carefully enough. First, it is not importation, and you should read the MAI case to see how easily this answer can be arrived at. The Utah Lighthouse case that is based on MAI is also enlightening.
But anyway, even if this IS importation -- which it is not -- that is illegal, save where 602 applies. Look closely at 602(b): In a case where the making of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited.
Well, if "this title," i.e. US law were active in Russia, the pertinent copies could not be legally made. They would be infringing. Hence, while it would require the Customs service to stop you, it is illegal. The 602(a) exception doesn't make it legal -- it just prevents the US copyright holder from suing you.
But this is all academic. As I said, there is no importation. A new copy is being created on your hard drive. A copy is a MEDIUM embodying a work. A TANGIBLE MEDIUM. You simply cannot, given the way the law is written (see 17 USC 101) move a work from one copy to another. Instead, you must create a new copy in the second medium, whereupon you may (or may not) destroy the previous copy.
If you agree with any of this, feel free to repost it in the future.
Okay.
I think we should avoid using unkind words like "piracy"... instead, we should describe it as an "infringement", much like a parking infringement.
I agree with that. Infringement is the correct term for certain offences, and that's why you'll find it in statutes and inumerable cases.
(4) I believe that piracy is driven by overly long copyright duration, even though most pirated works are recent releases.
I think it's a factor -- and besides, a lot hinges on how overly long terms are felt to be.
I believe that artists should be compensated for their work -- preferably by someone else. I mean, they can sell concert tickets (which someone else can buy) or sell t-shirts (to someone else) or something. As long as someone else subsidises my free ride, I'm coooooool with it.
Sounds good to me. I love getting free stuff. Who doesn't, in fact?
(10) I believe that copying someone elses music, and redistributing it to my 1,000,000 "best friends" on the internet is sharing. Music is made for sharing. It's my right.
Provided that it isn't done for profit (NET Act be damned) and is only engaged in by natural persons, I've got no problem with this. Enact this sort of reform, and most infringements will disappear, in fact.
(11) I believe that record companies cracking down on piracy is "greed", but a mob demanding free entertainment is not.
Disagree with this one. They're both greed. But that's okay.
(12) I believe that it's not really "piracy" unless you charge money for it, because, receiving money is wrong, but taking a free ride is fine.
See response to #10, above.
What I find amusing is that the pirates seem unable or unwilling to distinguish between creative activity and brainless copying.
Oh, there's a difference. But both are worthwhile endeavors. If it wasn't for rote copying, we'd have lost all the works of antiquity.
If you like music, you should pay for it.
Why?
I like the sun, the air, and the ocean, and they're all free. I like Shakespeare, Heroditus, Aristotle, and the art of the Italian Renaissance, and I don't have to pay to make copies of them.
If you've got a good reason, you should tell us what it is.
You are giving away copies of their work so that they don't get paid for it. Again, you will never, ever be able to justify this
Then how do we justify the fact that we place all works in the public domain after a while?
Easily, I think, if we ignore artists altogether and concentrate on what makes the public happiest in the long run. Maybe fortune will smile on artists and they'll find that we are happy when they're happy. Or not, and artists will be penniless when the public is at its happiest.
Either way, I don't care about artists, and it all works out rather well. In fact, not caring about artists, but only caring about the public, is what copyright is all about.
Are you saying the law should allow people to pirate anything that is copyrighted?
More or less, yeah. But see #10 above.
How will John Carmack ever make money on Doom 3 if pirates simply copy it everywhere so that nobody has to actually buy or order it?
Got me. This may result in there not being Doom 3. But if people can copy freely, and that despite the lack of Doom 3, people are more satisfied, then it is a good thing. Basically you add up the increase in happiness by being able to copy, and subtract the decrease from having fewer works, and if you still come out ahead of where you would be otherwise, it's clear that you need to reduce copyright.
Always make reductions or enlargements in copyright until you reach the point where the public is maximally satisfied, that's the thing.
You cannot claim a number as property becuase it could possibly happen to represent a song in some digital format.
Sure. But that's not what we're talking about. You're saying that you cannot have rights to a number that was specifically chosen because it represents a work. You didn't randomly pick out numbers.
If you copy a work as you describe -- even when you are clever about how you do so -- you're infringing.
Only if you independently create an identical work, without having had access to the earlier instance of the work, would you be okay.
There is no grey area because your intent is always perfectly clear -- to get away with copying something. No court is ever going to side with you.
17 USC 106 says that the right to reproduce copyrighted works is exclusive to the copyright holder.
While I agree that this is subject to some limitations, it's still a very broad, overarching right that is counter to the earlier claim that a single backup copy of damn near anything is legal.
Would anyone care to show an exception to 106 that does permit a single backup copy of damn near anything? And I should caution you that you cannot make valid blanket statements as to what is and is not permitted by 107.
Slashdot Mirror
No, you're reading it wrong.
The federal constitution is always supreme. Under that are federal statutes and treaties, which are on an equal basis, but the most recently passed always controls (just as with any other laws not superior or inferior to one another). Then there's various administrative rules, and so forth, beneath all that.
Copyright only covers using someone else's work. You can't do that by accident.
Actually, you very easily can. Also, use is not at all covered by copyright. Reproduction, distribution, the creation of derivatives, and public performance or display, and a few other things are what are covered by copyright.
Though I will grant you that there is no infringement where you independently created a work.
Patents cover a specific way of doing things
No, that would be a process patent, and there are other kinds of patents. Patents can also preclude your merely having certain substances or machines, regardless of what you're doing with them.
you can't check every little thing that comes off the top of your head
Sure you can. There's a good search engine at uspto.gov. You're saying that it is impractical; that you could be doing something else. I agree, but that doesn't mean that it's impossible for you to be cautious. Only that you had the option and chose not to be.
there's the submarine patents that pop up a couple years after your 'infringing' work is on the market.
That practice has AFAIK largely been put to rest with the change of the effective date of patents being from filing, rather than from grant.
In the case of EULA, the minor got nothing for "agreeing". It wasn't presented before delivery of goods, after all. All he "got" was the box open (a box which, along with all of its contents, he had already paid for). So to exit the contract, he can just seal the box again...
No, the idea is that he got the goods. The goods were delivered subject to his future agreement to the remaining terms. I don't necessarily believe that this ought to happen, but there is at least ARGUABLY by the other side, something in exchange for agreement. Since in the absence of agreement, he can't keep the software at all, and has to go get his money back.
(Opening a box in the privacy of my home is not "sufficient to show agreement" if the other party cannot see me. Nothing has been "shown"- incommuincato persons cannot enter a contract*)
I find that doubtful, but I don't have my copy of the UCC in front of me, and I don't have time to look to see what it has to say on the subject. Given its general nature though, I see no reason why one cannot show agreement in private. I strongly doubt it means to literally jump up and down and yell out "I agree! I agree!"
If ProCD stands, vendors of any nontrivial product (durable good) will have the power to revoke usage at any time, by making arbitrary new demands that had not even been concieved when the sale was transacted.
No, I don't think it would work at any time -- it's an efficiency measure. It's impractical to discuss terms in the store, so they're discussed as soon as you have a real chance to dig into them. Showing up a year later and asking for user's first-born isn't at likely to fly IMO. (though contracts that permit later unilateral alteration of the contract is something that I am not prepared to discuss right now in either direction)
But it is impossible to prove a patent is valid. For example, if two people used the invention prior to the patentee inventing it, then the patent is invalid. But for all we know, those people live in the middle of fly over country, and never told anyone (though never tried to conceal, either) what they had done. No one should be required to have known about that. But once someone DOES find out, no matter who that person is, the patent needs to be invalidated. If you say, at any time, that it's valid, you're basically barring the later invalidation of the patent when new information is discovered.
All that a patent from the PTO means is that the patent is presumed to be not invalid; not actually valid. And it is a rebuttable presumption, though I think it needs to be more easily rebuttable.
Many things limit contract law, including age of the customer... and as it happens, very many game buyers are too young to enter contracts.
Just because you are a minor, that does not prevent you from entering into contracts. It just means that in some situations, you can get out of the contract -- though you likely as not will have to give back whatever you got from the other person, so as not to result in an injustice to him.
The idea that minors can't contract is an unfortunate myth.
It is plenty obvious that the ProCD decision will be struck down as soon as its elevated to a court with half a brain.
That's fairly inappropriate. I disagree with the decision, but Judge Easterbrook, who wrote the decision, and the other members of the 7th Cir. are hardly dumb. At any rate, as far as I've seen, while the issue is not settled, ProCD is the leading case, and it is what courts are probably going to adhere to.
Any judge who considers the implications of entering into an arbitrary contract by tearing open a box or "Click 'I Agree' to install" will be horrified.
Well, it's quite clear that you've never bothered to READ the ProCD opinion itself, despite your insulting the court. Even the ProCD case takes pains to point out that EULAs will need to offer a meaningful choice to reject the terms once they're available. For the EULAs to be effective, you need to be able to say no, and to then return the software for a refund.
After the inevitable happens* and the foundations of software EULAs are shattered, there will be no way contract law can apply to game sales. They'd have to sit you down at the counter and sign paperwork before handing you the box... and that extra work (and blatant customer-hostility) would be such a drain on sales it'd outweigh any supposed benefit of prohibited resale.
Still possible, though. If you get rid of after-the-fact contracts with non-merchants (which personally, I think the UCC generally does, as I agree with, I think it's the Kloeck decision out of D. Kan. that goes against ProCD), that just means that an adhesive EULA is literally adhered to the outside of the box. But there's no real difference. Plus that would have ramifications, as ProCD points out, for a lot of other after-the-fact contracts, such as those found with airline tickets.
If you get rid of adhesive contracts altogether, THEN people need to sit down and hash things out. Though I bet it'd still be impossible to bargain.
I think it's probably better to, for now, cut out adhesive contracts with regards to copyrighted works alone, but not to other things. Though that might imperil the GPL et al.
There's probably no really good solution.
What lawyers? Patent examiners don't have to be lawyers; they just have to a) be skilled in some sort of hard science, and b) pass the patent bar (which basically tests one's knowledge of science, as well as a few laws and regulations, but only the ones related to the PTO, and not the law generally).
I know several non-lawyers that passed the patent bar. It's hard no matter what, but it's perfectly doable. Most lawyers, OTOH, could never even qualify to sit for it, not having the requisite background, much less have a chance in hell at passing.
So what lawyers?
Actually, that's not really right in either respect.
With both patents and copyrights, the number of areas one is excluded from are really fairly large. For example, you are not allowed to publicly perform works, though that is not a copy in the eyes of the law, nor are you allowed to import them in various manners, which also isn't even vaguely related to copying. Likewise, patents deal with many issues related to inventions.
However, since all patents are on file, there's no reason for people to accidently infringe on a patent. They can and should know that it exists; they're just not checking. But ignorance is never an excuse.
But society would also win out because ideas are being taken advantage of by SOMEONE, rather than being sat on by inventors who not only lack working capital, but who will never get it. (if for no other reason than that it would be profitable to capitalize on the invention, but not enough so as to pay the inventor to boot) Plus you forget that there have always been inventions, and that some people will invent regardless of their own ability or desire to implement their inventions. E.g. Salk didn't want a patent on the polio vaccine -- he wanted to stop polio, and didn't care how that was accomplished, or whether he'd profit thereby.
So now the question becomes, would society win out more than it would lose out, or vice versa? Then, rather than just using this simple pro/con arithmetic to decide whether to keep the extant patent system or shut it all down, use it to consider all possible variations of the patent system against each other, as well as against shutting it all down.
Somewhere in there, probably not where we are now, is the system that would have society win out the most, even after subtracting where we've lost out in the process.
THAT is the system we want to have.
Why shouuld our tax dollars pay examiners who are literally unable to do their job?
First, the job of the PTO is NOT to find valid patents. No one ever, anywhere, anyhow, can prove patent validity. You would literally need to be omniscient, and I guess I must not be, 'cos I don't know who is that we might get to work there.
Second, don't fear, your tax dollars DON'T pay for the PTO. They fund themselves. In fact, they turn a profit, and have been getting raided by other parts of the government, which is more or less where the present crisis comes from. If they could keep their money, they could generally afford to do a good job of things.
Let's eliminate patent prosecution and have it ALL go to the courts.
Because that would spectacularly not only NOT solve the imaginary problems you think we have, it would CAUSE some of them. Talk about an ass-backwards solution!
The PTO at least has experts. Courts don't know this crap from Adam, and you're never going to make them learn. Even the Fed. Cir. isn't _that_ good.
PLUS the courts ARE funded out of your tax dollars, AND are even more backlogged than the PTO is! So you would be totally fucking up an entire branch of the government, and paying through the nose for it, and not having swifter or superior patent regimes.
It is frankly, the stupidest idea I've heard all week.
At least inventors wouldn't have to pay thousands to a patent scribe to draft a patent. They would do it themselves, and only hire an attorney when they seek enforcement/invalidity/whatever.
Of course, EACH AND EVERY ONE OF THOSE PATENTS WOULD BE FACIALLY INVALID. Because patents have to conform to very precise requirements of disclosure, for a start, and I guarantee you that no inventor is going to know how to do it.
And if they can't do it RIGHT then it is imperative that they not get a patent, because they have utterly failed to describe their invention so that 1) other people know what it is and can avoid infringing on it, 2) other people know what it is and won't try to patent it again, 3) other people know what it is and can use it to better society. It is very very very hard for lawyers that specialize in this to write a good patent.
My confidence in inventors -- who specialize in inventing stuff, not in writing complex legal documents -- to be able to do this is absolutely nil. Less than nil perhaps.
Well duh. It's impossible to prove patent validity. Even courts can't do that. There could always be some heretofore unknown prior art or other defect in the patent rendering it invalid.
Look through some judicial decisions, and you'll see that even when the patentee wins, all he wins is that his patent is -- as far as THIS challenge goes -- not invalid.
Could be invalid as to the next, better, challenge, however. You can never tell.
It's really nowhere near enough time. Patents are extremely complex, and are often written in a somewhat obfuscated manner to the degree that that's possible.
Plus, of course, the examiner has to be qualified in the field the patent is being applied for; you don't put civil engineer examiners in charge of applications for biotechnology inventions. So there are likely some even more overburdened examiners, since the load cannot be evenly distributed.
You also don't realize that this isn't a matter of looking at one patent all day. Examiners also have to hold meetings to discuss any remediable defects with the applicant, read through revisions of the application, etc. So it's less than you'd think; prosecution of a patent takes on average 18 months to 3 years, IIRC, in part because there is a back and forth with the applicant. It's hard to know an invention thoroughly that you've only looked at for a few hours over a couple years.
AND you cannot blame the PTO for allowing some of the patents we've seen in recent years. They're obligated by law to grant patents unless there's a good reason not to. And worse yet, once granted, it's actually really hard to find inventions unpatentable.
What's needed is more money for the PTO so they can hire more examiners, increased publication requirements, permanent best mode disclosures by damn near everyone, and reduced burdens for challenges to patents (such as using the preponderance of the evidence standard, and being able to reexamine PTO prior art).
People who are able to represent the overall public interest: the one that doesn't care what inventors think, so long as it is overall a good system for the public.
Right now I see the equivalent of getting the movie, book, software, and record industries together to write copyright law. Which in fact, is what has been happening all through the 20th century, and it's consistently fucked over the public.
No matter how enlightened their self interest is, it's THEIR self interest. The patent system is supposed to satisfy the self interest of the PUBLIC.
How much piracy has to go on before people stop so that the record companies stop these last-ditch efforts?
Too little, clearly. I'm fairly convinced, seeing what satisfies people, that the way to go is to make whatever natural persons do not for commercial gain noninfringing. Although there will be a reduction in the public happiness that arises out of original works being created, it will substantially increase the public happiness that arises out of derivative works being created, and of being able to do more with works, and get more works for your money. And public happiness is EVERYTHING with regards to copyright. After all, if you're asking the public to permit laws passed that restrict them, and to abide by them, then they'd damn well better gain more from such a regime than they'd lose, or else it would be purely stupid of them to aquiece.
The artists are completely ignored in this equation
Well, duh. That's like saying that, in setting regulations as to the sale of dairy products, that no one asked the cows what they think of the whole deal. Artists are not important with regards to copyright; they should not have any special influence on policy. The only group that matters is the public at large -- how can we best make them happy, when we know that the two equal things they like are having more works created, and having those works be unrestricted and at no cost.
Absolutely nothing justifies ripping an artist off.
But remember that being an artist absolutely doesn't justify having copyrights at all, or of any particular nature. All copyrights are granted to artists -- they're not inherent. So when we give artists less, nothing they have a right to is being taken from them. They don't magically deserve copyright. They have to EARN it in ways that maximize the public good.
Well, of course it is a right you can sign away, at least to some extent.
What you're missing is that first sale is not YOUR right. It is merely a limitation on the copyright holder. It says: your copyright, mister author, does not all by itself let you control sales of lawfully made copies of your book after you've sold it.
But it doesn't say you, the reader, have an absolute right to resell. Nor does it say that the author cannot use OTHER means to achieve something similar in practice. Merely that he is limited in how much he can use copyright.
You see, you have NO rights conveyed in the copyright statute that have to do with your ability to resell copies. Rather, the source of your right to do so stems from the law of property. So your right to sell a book used is basically EXACTLY the same as your right to sell a car used, or a piece of land, or whatever.
And that is a right that can be subject to restraints on alienability. Admittedly, courts don't much like such restraints, but to a degree they're prepared to accept them. Provided that your gaining posession of a game was construed as a sale -- and that's a big if these days -- then it's true that they couldn't bar you from resale forever, but I bet they could for long enough that it wouldn't make a difference to you. And if it was construed as merely a lease or something, then you're pretty screwed altogether.
Consider me rude if you like, but your problem is that you are not bothering to look into this. You are just standing by the position you like best and deciding that just because you like it, it must be right, and you're unassailable. I suggest you wise up if you really want to stop this sort of trend, because right now you're too deluded to do anyone a lick of good.
No, that's wrong. You're not looking beyond basically the name of the doctrine.
While there are of course, limits to how far restraints on alienability can go, generally there can be at least some. This is true for any kind of property, and while a copyrighted work is not property, any given copy of that work -- such as a game CD -- most decidedly is.
All the First Sale doctrine says is that AS A MATTER OF COPYRIGHT LAW the copyright holder can only control the first sale. BUT FIRST SALE DOES NOT LIMIT CONTRACT LAW, which may be able to provide for one not being allowed to resell something if you agree to such a valid contract. The key difference is that the exclusive right to distribute (which first sale limits) is automatic for the duration of the copyright, whereas a contractual limit on alienation must be explicitly set up and agreed to, and is applicable to anything that you can have a contract for, as opposed to just creative works.
So do you have any laws that ACTUALLY prohibit them from doing that? Or are you just some schmuck that can parrot a couple of things he's heard secondhand, and still get it wrong?
Probably not. And if you want one, you'll have to get rid of Linux as well.
EULAs have been upheld in court on numerous occassions. The leading case in favor of EULAs is the ProCD case. You may want to look it up. But do note that there is some dispute about them -- there was a case against Gateway, in D. Kan. that went the other way, in a more convincing manner, IMO.
That's illegal, they can't restrict that.
Oh? Which law prohibits them from doing that?
arguably makes it illegal to play the game because that requires that a "copy" be made in the machine's RAM.
Well, if an enforcable EULA attempted to limit later disposition of the game, and said nothing, or specifically exempted, copies and adaptations needed to run the game oneself, how would it touch on this.
Though I maintain that a running copy is not a true copy.
Well, the restriction is on reproduction. Copying enough, but not all, would count. And making an adaptation is arguably the making of a derviative work, and that's also prohibited -- save for when the 117 exemption is available.
Well, MAI -- and the Utah Lighthouse Ministry v. Intellectual Reserve case that comes from MAI -- don't distinguish between data and programs. If it is on a computer, they hold, new copies are made when anything goes from network to hard drive, hard drive to RAM, RAM to cache, etc. Each physically distinct piece of memory is a seperate medium. Since a copy is a medium embodying a work (see 17 USC 101), each one is a seperate copy.
When you download, you are making at least one new copy.
Qualtiy King is merely the only case I know off the top of my head involving even dicta about 602, and there is some. The copies were talking about are piratical, per 602(b) because they could not be made legally under US law. 602(a) doesn't save it, because both sections only deal with who can act to stop it -- not overall legality.
No, you're just not reading the law carefully enough. First, it is not importation, and you should read the MAI case to see how easily this answer can be arrived at. The Utah Lighthouse case that is based on MAI is also enlightening.
But anyway, even if this IS importation -- which it is not -- that is illegal, save where 602 applies. Look closely at 602(b): In a case where the making of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited.
Well, if "this title," i.e. US law were active in Russia, the pertinent copies could not be legally made. They would be infringing. Hence, while it would require the Customs service to stop you, it is illegal. The 602(a) exception doesn't make it legal -- it just prevents the US copyright holder from suing you.
But this is all academic. As I said, there is no importation. A new copy is being created on your hard drive. A copy is a MEDIUM embodying a work. A TANGIBLE MEDIUM. You simply cannot, given the way the law is written (see 17 USC 101) move a work from one copy to another. Instead, you must create a new copy in the second medium, whereupon you may (or may not) destroy the previous copy.
If you agree with any of this, feel free to repost it in the future.
... instead, we should describe it as an "infringement", much like a parking infringement.
Okay.
I think we should avoid using unkind words like "piracy"
I agree with that. Infringement is the correct term for certain offences, and that's why you'll find it in statutes and inumerable cases.
(4) I believe that piracy is driven by overly long copyright duration, even though most pirated works are recent releases.
I think it's a factor -- and besides, a lot hinges on how overly long terms are felt to be.
I believe that artists should be compensated for their work -- preferably by someone else. I mean, they can sell concert tickets (which someone else can buy) or sell t-shirts (to someone else) or something. As long as someone else subsidises my free ride, I'm coooooool with it.
Sounds good to me. I love getting free stuff. Who doesn't, in fact?
(10) I believe that copying someone elses music, and redistributing it to my 1,000,000 "best friends" on the internet is sharing. Music is made for sharing. It's my right.
Provided that it isn't done for profit (NET Act be damned) and is only engaged in by natural persons, I've got no problem with this. Enact this sort of reform, and most infringements will disappear, in fact.
(11) I believe that record companies cracking down on piracy is "greed", but a mob demanding free entertainment is not.
Disagree with this one. They're both greed. But that's okay.
(12) I believe that it's not really "piracy" unless you charge money for it, because, receiving money is wrong, but taking a free ride is fine.
See response to #10, above.
What I find amusing is that the pirates seem unable or unwilling to distinguish between creative activity and brainless copying.
Oh, there's a difference. But both are worthwhile endeavors. If it wasn't for rote copying, we'd have lost all the works of antiquity.
If you like music, you should pay for it.
Why?
I like the sun, the air, and the ocean, and they're all free. I like Shakespeare, Heroditus, Aristotle, and the art of the Italian Renaissance, and I don't have to pay to make copies of them.
If you've got a good reason, you should tell us what it is.
You are giving away copies of their work so that they don't get paid for it. Again, you will never, ever be able to justify this
Then how do we justify the fact that we place all works in the public domain after a while?
Easily, I think, if we ignore artists altogether and concentrate on what makes the public happiest in the long run. Maybe fortune will smile on artists and they'll find that we are happy when they're happy. Or not, and artists will be penniless when the public is at its happiest.
Either way, I don't care about artists, and it all works out rather well. In fact, not caring about artists, but only caring about the public, is what copyright is all about.
Are you saying the law should allow people to pirate anything that is copyrighted?
More or less, yeah. But see #10 above.
How will John Carmack ever make money on Doom 3 if pirates simply copy it everywhere so that nobody has to actually buy or order it?
Got me. This may result in there not being Doom 3. But if people can copy freely, and that despite the lack of Doom 3, people are more satisfied, then it is a good thing. Basically you add up the increase in happiness by being able to copy, and subtract the decrease from having fewer works, and if you still come out ahead of where you would be otherwise, it's clear that you need to reduce copyright.
Always make reductions or enlargements in copyright until you reach the point where the public is maximally satisfied, that's the thing.
If you believe the copyright of the GPL sho
Wrong, wrong, wrong. You might at least take the time to look at the law first, you know.
Here, you haven't read 17 USC 1201(a)(3),(b)(2) or (c)(1), and you should have since they basically destroy your post.
You cannot claim a number as property becuase it could possibly happen to represent a song in some digital format.
Sure. But that's not what we're talking about. You're saying that you cannot have rights to a number that was specifically chosen because it represents a work. You didn't randomly pick out numbers.
If you copy a work as you describe -- even when you are clever about how you do so -- you're infringing.
Only if you independently create an identical work, without having had access to the earlier instance of the work, would you be okay.
There is no grey area because your intent is always perfectly clear -- to get away with copying something. No court is ever going to side with you.
17 USC 106 says that the right to reproduce copyrighted works is exclusive to the copyright holder.
While I agree that this is subject to some limitations, it's still a very broad, overarching right that is counter to the earlier claim that a single backup copy of damn near anything is legal.
Would anyone care to show an exception to 106 that does permit a single backup copy of damn near anything? And I should caution you that you cannot make valid blanket statements as to what is and is not permitted by 107.