Recipies aren't usually trade secrets, especially the ones printed in cookbooks.
Published recipes by definition are not trade secrets, since trade secrets must above all else be secret.
'Course, as already noted, recipes are not copyrightable in the first place, so they're already in the public domain. They could be patented, but this seems to not be very common.
I am arguing the uploader's infringment is distribution AND reproduction.
Okay. I don't think that it makes a real difference, however.
The allegation is not encouragement of "downloading", the allegation is encouragement of "reproduction infringment".
Which is what downloading is.
Every case of downloading is by definition linked to a case of uploading. So again, your argument has zero bearing on the position that it is the uploader who is commiting all of the infringment and that the downloader is entirely innocent.
That in the computer world all distribution is closely tied to reproduction is irrelevant. They're still two related but seperate acts of infringement, and downloaders are necessarily reproducing several times -- to d/l the work, to store the work, to view the work -- all of these involve copying to RAM or HD in some way.
Under MAI, that's enough.
A lot of this might be fair use, but that would have to be alleged, and won't always work.
GAhhhhhhhhhhh! Party C is guilty so you have copyright holder A sue innocent websurfer B for X dollars, and then have innocent websurfer B sue the actual guilty party to get that X dollars back.
No, not really.
More likely you'll have Alice, a copyright holder, Bob, a distributor, Carol, a facilitator, and David, a downloader.
Alice isn't made of money, and is impatient. She wants her lawsuits to stop infringement to be as effective as possible. Thus she's going to target whoever has the most impact on infringement.
Initially, Alice might have sued Carol. Carol runs a P2P service, but might not be using it illegally herself. Nevertheless, she's contributing to infringement by Bob and David, who use her service, and might even be a vicarious infringer.
But lately Carol's figured out how to avoid liability, or her system has effectively taken a life of its own and couldn't be stopped by Carol. So she's out.
Alice will next probably target Bob. He's easier to catch than David is, and there can be a lot of Davids leeching from each Bob. (though many Davids will themselves be distributing, and therefore be a Bob too)
David is the most annoying person of all to sue.
Thus while it's POSSIBLE, that Alice will sue David who will counter-sue Bob, which is the situation that you expect, I honestly doubt that Alice will bother to go after David until going after Bob is for some reason quite impractical.
Which is why we aren't seeing suits against downloaders yet. RIAA et al COULD sue downloaders. But it is far more efficient to sue uploaders at the time being. And they'd really prefer to sue facilitators above all else.
You are suggesting that tens of millions of ordinary innocent websurfers are each guilty of numerous infringments EVERY DAY. As opposed to a far far smaller number people who ARE responsible for putting putting infringing material up.
I am suggesting that this is the absurd position that is the end result of the MAI and Utah Lighthouse decisions.
I think it's asinine, and a clear example of why we need to burn copyright to the ground and then rebuild it to actually benefit society as a whole.
But I think that as it stands now, the law of the land is that yes, there are tens of millions, if not many, many more infringments every day. Many will be fair use, but not all of them, and that's a defense of last resort anyway.
False. Fair use allows an individual to make one copy of part of a book or journal or magazine for their own "fair use". If an instructor wishes to distribute an entire chapter or article to the entire class, royalties are due to the author and/or publisher. Yeah, it seems like a loophole, but there's a difference between putting a book on reserve and allowing students to photocopy the relevant chapter and handing out 30 copies to an entire class.
False.
Fair use permits everything and nothing. That is, there are no absolutes as to what is and is not a fair use. Anything MIGHT be, or might not be. It _depends_. It depends on the specific facts of the fair use in question, as analyzed through the four-step test of 17 USC 107.
Under the right circumstances, it is totally okay to distribute an entire copy of a book. Under other circumstances it would not be okay to distribute evne a paragraph.
While I certainly support people's efforts to obtain educations for their children, most artists would not benefit from this. Artists generally don't make a significant amount of money from royalties (which copyrights impact, as opposed to artistic labor such as concerts, or the sale of actual pieces of art as tangible things). Art is just not a money making profession. A few people can become tremendously sucessful as artists -- but the odds of being one of them are on par with winning the lottery. And of course, the economic value of those few works that have ANY noteworthy value to begin with declines rapidly over time.
So the only people that would get enough money from a life+20 term -- or even a term over perhaps 20 years -- are the people who are raking in a fortune, and thus don't NEED the extra money just to send their kids to college.
Thus it is extremely unfair to have long terms as a system for providing for widows and orphans since it only helps a small group of them (those that are the widows and orphans of artists), AND it is a tremendous failure because most of those artists never made, and never will make, enough money to provide for their loved ones anyway. A life+20 or longer term does NOT translate out into making money. Probably it's economically worthless, and if it's not it's probably only worth less than you could make at a minimum wage job.
The ultra-small minority of people (often not the artists) who hold copyrights to very successful works will of course benefit tremendously. This could be worth millions of dollars to them. But they're already making assloads of money -- do we need a half-assed flop of a social program to provide for them?
If you want a widows and orphans fund, if you want to help kids go to college, then may I suggest that you just have the government directly fund such things? It's fairer, since you don't have to be a close relative of an artist to qualify, and it's simply more practical since more than a fraction of 1% of people will actually benefit from it!
Sadly, you have no idea what you're talking about.
Fair use is a very broad doctrine. It _might_ apply to literally any kind of infringement whatsoever. No one factor -- such as whether a use is a literal copy or transformative -- controls the entire analysis.
Instead, each and every time that the fair use analysis is conducted, all four factors of the fair use test (see 17 USC 107) must be considered.
The example that immediately springs to mind is if someone made a high-quality -- let's say exact copy -- of a work for noncommercial educational or research purposes.
In either case they encouraged both reproduction and distribution.
Well, aside from that that doesn't seem to have been raised, forcing the entire argument to rely on the downloader, the uploader's infringement is one of distribution. Distribution AFAICT is illegal regardless of whether there is actual distribution, that is, plaintiffs do not have to wait until someone actually transfers a copy illegally, since the standing offer regardless of whether anyone takes infringer up on it, is sufficient. Since the Utah Lighthouse uploaders were uploading _already_, i.e. distributing already, defendants were not contributing to that.
Instead defendants merely encouraged downloading.
The sender has deceived me with a false grant of implicit permission.
And if copyright weren't a strict liability statute, that might mean something. Perhaps you'd have grounds for a counter-suit against the sender for his having deceived you, but that doesn't bar your liability to the actual copyright holder as things stand now.
My point is that the RIAA has an interest in painting the downloader as being the one violating the reproduction right. Napster had absolutely no reason to waste time arguing about who was reproducing. Since the issue was never raised it was not decided.
Well, I don't know. It has to be a Napster user to serve as a foundation for the contributory and vicarious infringement analyses. While it might not have to be the downloader, that leaves the uploader, of whom the same argument could be made. I'm not sure whether later courts would hold that the 9th Circuit didn't decide the issue, but I do agree that issues that don't have to be decided to resolve a case are not.
This case has the same problem as the Napster case. The defendant is not the downloader. The defendant doesn't care who is infringing, he's simply stuck with the fact that someone is infringing. Nobody has yet been able to point to a case where infringment was actually brought against someone for downloading.
No, I think that Utah Lighthouse does in fact decide that downloaders are infringing. No one else is accused of doing so in a way that could support the contributory claim.
According to plaintiff, after the defendants were ordered to remove the Handbook from their website, the defendants began infringing plaintiff's copyright by inducing, causing, or materially contributing to the infringing conduct of others. It is undisputed that defendants placed a notice on their website that the Handbook was online, and gave three website addresses of websites containing the material defendants were ordered to remove from their website. Defendants also posted e-mails on their website that encouraged browsing those websites, printing copies of the Handbook and sending the Handbook to others.
The other people posting weren't at issue, since defendants in that case didn't have anything to do with that reproduction. They encouraged downloading only, and were successfully sued for it on the grounds that the downloading specifically was illegal.
Any time you "copy" anything other than a program into RAM you are commiting copyright infringment. The result is stupid, you may as well make computers illegal.
Well, the infringement might be mitigated against by implicit permission granted by the copyright holder. But yes, I agree that MAI is a stupid decision. And that downloaders shouldn't face so much liability, at least not innocent downloaders.
The defendant's only interest in the case was whether reproduction infringment occurred. I do not dispute that reproduction infringment occurred. Napster had absolutely zero interest in showing that it was not the downloader who was doing it.
No, plaintiff alleged two types of primary infringement: infringement of the reproduction right and infringement of the distribution right. Defendant Napster would therefore have desired to attack both branches, either claiming that no infringement occurred, or that the infringement was permissible due to other portions of the copyright law such as the fair use defense. This is because if any of Napster's users were infringing, this could support the contributory and vicarious infringement claims.
(2) The ordinary act of websurfing is not copyright infringment. Many items placed on the web were infringingly placed on the web, for example every time someone reposts a full article here on Slashot without permission. The moment YOU happen to come across that page YOU have just downloaded it. If downloading is infringment then EVERYONE who ever surfs the web is guilty of innumerable counts of infringment, including YOU.
Yes. This line of reasoning is based on the MAI v. Peak decision in the 9th Circuit that held that the making of a copy of information on a computer, even merely a copy to RAM that was necessary in order to use software, constituted infringement, all else being equal.
There HAVE been cases where web browsing of improperly accessible material was held to be an infringement upon which a contributory infringement suit could be brought. Utah Lighthouse, 75 F. Supp. 2d 1290 (1999) instantly springs to mind.
The court there held:
The first question, then, is whether those who browse any of the three infringing websites are infringing plaintiff's copyright. Central to this inquiry is whether the persons browsing are merely viewing the Handbook (which is not a copyright infringement), or whether they are making a copy of the Handbook (which is a copyright infringement).
"Copy" is defined in the Copyright Act as: "material objects . . . in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." "A work is fixed' . . . when its . . . sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."
When a person browses a website, and by so doing displays the Handbook, a copy of the Handbook is made in the computer's random access memory (RAM), to permit viewing of the material. And in making a copy, even a temporary one, the person who browsed infringes the copyright. n5 See MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993) (holding that when material is transferred to a computer's RAM, copying has occurred. Additionally, a person making a printout or re-posting a copy of the Handbook on another website would infringe plaintiff's copyright.
n5 Although this seems harsh, the Copyright Act has provided a safeguard for innocent infringers. Where the infringer "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages. . .."
(Some internal citations deleted for clarity).
It is in general impossible for a person receiving a file to know or to determine whether or not the uploader is licenced to to make and distribute copies. It is in general impossible for the person to know the actual contents of the file before receiving it.
Knowledge isn't necessary for copyright infringement. It's a strict liability statute. If you do it, no matter how innocent you are, it doesn't change that you did it -- you're still liable.
The District Court in the Napster case, 114 F. Supp. 2d 896, 911 (2000), concluded that there had been a prima face showing of infringement by users as an element in a contributory or vicarious infringement analysis. At that point that court did not differentiate between uploaders and downloaders, but it did say that "virtually all Napster users engage in the unauthorized downloading or uploading of copyrighted music." Additionally, Napster's rebuttal did tend to focus on downloading being fair use, though this was rejected. Id. at 912.
In the appellate Napster decision, the Ninth Circuit noted that Napster did not appeal the holding of prima face infringement. 239 F.3d 1004, 1013 (2001). The court there examined the issue anyway, as it was still a threshold issue that governered the need for the remainder of the contributory and vicarious infringement analyses, and pertinent defenses.
The district court further determined that plaintiffs' exclusive rights under 106 were violated:" here the evidence establishes that a majority of Napster users use the service to download and upload copyrighted music.... And by doing that, it constitutes--the uses constitute direct infringement of plaintiffs' musical compositions, recordings." The district court also noted that "it is pretty much acknowledged... by Napster that this is infringement." We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holders' exclusive rights: the rights of reproduction, 106(1); and distribution, 4229 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights. Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights.
Id. at 1013-14 (internal citations omitted, emphasis mine).
As for getting into the nitty-gritty details of who's making the copy, the end result of the process results in a new copy residing on downloader's drive. Even if additional incidental copies were made along the way, downloader still used those incidental copies to create a copy on his own machine. It'll be enough for a court, which at any rate is somewhat more interested in using their common sense than they are in denying it.
While this is an interesting position, bear in mind that what I said was that "perhaps some of the/. crowd feel that copyright infringement ought to be, &c."
As it stands now, however, infringement is typically infringement regardless of whether it's a commercial use or not. There may be specific statutory exemptions that rely on a commercial/noncommercial distinction, e.g. 1008 (though n.b. the definitions in 1001 are critical to properly reading 1008), but on the whole your statement is erroneous given existing law. (I assume US law here)
That doesn't mean you can't feel that copyright law ought to be changed to fall in line with your wishes though.
Well, copyright is both a criminal and civil issue.
For example, suppose I hit you on the head with a bat. The police might, or might not, arrest me, and the state might prosecute me for hitting you. If they won, they could put me in prison.
However, that has no bearing on whether you could independently sue me for battery. You couldn't get me thrown in jail, but you could get money damages to compensate you for your injuries, and perhaps even additional damages to deter me from hitting other people.
The former is criminal, the latter is civil.
RIAA and its members are bringing civil suits against people to compensate them for the damages that particular instances of copyright infringement have caused them. They're not getting people thrown in jail -- the Department of Justice decides whether or not to prosecute copyright infringers criminally.
First, file serving is not copying. File serving (at least in this context) is a violation of the copyright holder's exclusive right to _distribute_ copies of his work.
Downloading is copying (i.e. making a copy of data from a master stored on the remote server), and and is a violation of the copyright holder's exclusive right to _make copies_.
This is all terribly clear in 17 USC 106, and I suggest that you take a look at it. If you persist in arguing that downloading isn't infringement, please show something to support this claim. But you might want to read the Napster decision by the 9th Circuit, which points out that Napster was liable as a contributory and vicarious infringer for the infringements of its users, which the court says were distribution by uploading users and copying by downloading users.
Just because it is a little harder to go after downloaders, and just because they haven't gone after downloaders yet, that doesn't mean that it's legal.
The $150,000 fine per infringement should only be applicable as a punishment for the WHOLE infringement, as in for ALL the illegally distributed copies of one particular song.
It is, but also per-infringer. I.e. whether you infringe on a single copyright once or a million times, the statutory damages don't multiply.
Well, what people were saying was that it was inappropriate to sue Napster for facilitating infringement. That doesn't mean that it's an incompatable position with not wanting ordinary people sued for infringing P2P activity either.
E.g. perhaps some of the/. crowd feel that copyright infringement ought to be a remedy available only against commercial infringers.
And what happens when everyone wants to teleport to the same place at once? There's a traffic jam when you're getting in or out of the teleporter booth. Teleporters only would be practical if you had site-to-site teleporters.
Yeah, but that's just what makes Boston charming is all, instead of a faceless anonymous grid.
Of course, what's even better is the stretch of 128 down by Dedham where the signage indicates that you're going north and south simultaneously. (e.g. 128 south is also 93 north) Meanwhile you're actually pointing east-west at the time.
Well, the Court ruled long ago that schoolchildren cannot be forced to say the pledge.
In fact, what they said was more or less that the government can NEVER require people to proclaim any sort of mandated belief or orthodoxy. No one should ever have to pledge unless they actually mean it, and it is voluntary. Indeed -- isn't it a worthless pledge otherwise, much like a religious conversion at gunpoint?
Teaching about our history or government is fine -- but the pledge doesn't do that. It affirms a belief.
I strongly suggest that you read the relevant case on this issue and rethink your position. A copy of the Barnette case may be found here.
Congress didn't exist until the Constitution was written
Actually it kind of did.
The First Continental Congress met in Philadelphia in 1774, but ultimately did little more than complain to England. They met again in 1775 as the Second Continental Congress. They -- after a VERY long period of not doing much -- wrote the Declaration of Independence the next year. They also wrote the Articles of Confederation, which was the first government of the United States. When it turned out to not work so well, a Constitutional Convention met to reform the Articles (immediately they decided to just throw them out and start over) under the auspices of Congress. The Convention finished it, sent it to Congress, which sent it out to the states, it got ratified, and then we wound up with a federal Congress. Congress changed significantly under the new Constitution, but arguably it's still supposed to be more or less the same body that dates back to 1775. It's at least closely related to it.
Yeah, the thing is though, that it takes a hell of an issue to make it through Congress and then through 3/4 of the states within a few years (as is the common practice now).
For example, flag burning was held constitutional quite a while ago now, and no amendment against it has yet come to pass.
In fact, in the last two hundred years, we've seen only 17 amendments passed beyond the initial bill of rights.
Most of these deal with voting or other issues relating to elected offices: The 15th, 19th, and 26th amendments expand the franchise to racial minorities, women, and those over 18, respectively. The 24th getting rid of the poll tax. The 23d giving DC presidential electors. The 17th making senators popularly elected. The 12th, 20th, 22d, and 25th all relating to the office of the Presidency -- who's eligible, who succeeds to it, how the voting is conducted, etc. The 27th is a revived amendment that was originally proposed as part of the Bill of Rights, and limits Congressional compensation.
That's 11 of the 17.
The 11th took care of a minor federalism issue that cropped up very early on due to ambigious wording of Article III.
The 13th and 14th (and 15th again) are reactions to the Civil War. Of all the post BoR amendments, it's the 14th that's been the most important.
The 16th permitted Congress to enact a federal income tax.
The 18th was prohibition, which is as stunningly a stupid idea as a pledge amendment would be, and it was repealed promptly by the 21st.
So if you really think that it's likely that we'd pass a pledge amendment, you must be nuts. There have been numerous stupid proposals in the past, but hell -- they never even manage to get out of Congress! In our entire history, only 33 ever managed to even make it as far as being proposed to the states. (such as the infamous pro-slavery amendment that was sent out on the eve of the Civil War)
What will really happen is that people will grumble a bit, but it won't be a big deal.
Because they constitute an establishment of religion, or so the 9th Circuit twice found to be the case. And IIRC the District Court also held for Newdow.
This would not be good for the government to require teachers to say, if such were the case. But it gets worse.
It's certainly bad for the government to require people to recite a statement that operates as an establishment of religion when the requirement is intended to cause young, impressionable children to fall in line with it despite the children unknowingly not actually having to.
That is, the state can't require kids to recite the pledge (and this was so held by the S.Ct. back in 1942 -- notably because they felt, even at the height of WW2, that to demand patriotic statements or any other government-imposed orthodoxy would be anti-American), so they're trying to weasel around that by having teachers lead students in the pledge, which takes advantage of the fact that little kids don't know that they don't have to say the pledge in the first place.
I personally don't much care for people who decide to trick children merely because the children don't know any better, particularly with regards to as serious a matter as religion. It seems very underhanded. And very inappropriate for the government to be doing; we ought to be able to trust the government, but this seems to be an abuse of that trust.
Myself, it wasn't until I was in 11th grade that I realized how stupid the pledge was, and stopped saying it. (Though not for religious purposes; I stopped saying it because I feel that people don't owe the government or the country anything, but as both are our creations, they owe their allegience to the people) For this, pressure was put on me, but as I refused to knuckle under, they had to let me not do anything.
It's just stupid to require an eight year-old to exhibit the same sorts of convictions and defy authority just to not do something that it is unconstitutional to demand of him anyway! If we were talking about adults, the coercive nature of the regulation in question might not be as big a deal. But under the circumstances, it is a big deal.
That being said, the government can't manage to avoid doing anything that might conceivably promote religion. E.g. it cannot discriminate against religious schools in limiting the scope of an otherwise generally applicable voucher program. It might be said that it promotes religion when it does that, but if it is of general applicability, it's likely less of a colorable discrimination in favor of than failing to extend it to them would be definate discrimination against.
It's not easy to maintain the balance of neither favoring nor _disfavoring_ religion.
Slashdot Mirror
Recipies aren't usually trade secrets, especially the ones printed in cookbooks.
Published recipes by definition are not trade secrets, since trade secrets must above all else be secret.
'Course, as already noted, recipes are not copyrightable in the first place, so they're already in the public domain. They could be patented, but this seems to not be very common.
I am arguing the uploader's infringment is distribution AND reproduction.
Okay. I don't think that it makes a real difference, however.
The allegation is not encouragement of "downloading", the allegation is encouragement of "reproduction infringment".
Which is what downloading is.
Every case of downloading is by definition linked to a case of uploading. So again, your argument has zero bearing on the position that it is the uploader who is commiting all of the infringment and that the downloader is entirely innocent.
That in the computer world all distribution is closely tied to reproduction is irrelevant. They're still two related but seperate acts of infringement, and downloaders are necessarily reproducing several times -- to d/l the work, to store the work, to view the work -- all of these involve copying to RAM or HD in some way.
Under MAI, that's enough.
A lot of this might be fair use, but that would have to be alleged, and won't always work.
GAhhhhhhhhhhh! Party C is guilty so you have copyright holder A sue innocent websurfer B for X dollars, and then have innocent websurfer B sue the actual guilty party to get that X dollars back.
No, not really.
More likely you'll have Alice, a copyright holder, Bob, a distributor, Carol, a facilitator, and David, a downloader.
Alice isn't made of money, and is impatient. She wants her lawsuits to stop infringement to be as effective as possible. Thus she's going to target whoever has the most impact on infringement.
Initially, Alice might have sued Carol. Carol runs a P2P service, but might not be using it illegally herself. Nevertheless, she's contributing to infringement by Bob and David, who use her service, and might even be a vicarious infringer.
But lately Carol's figured out how to avoid liability, or her system has effectively taken a life of its own and couldn't be stopped by Carol. So she's out.
Alice will next probably target Bob. He's easier to catch than David is, and there can be a lot of Davids leeching from each Bob. (though many Davids will themselves be distributing, and therefore be a Bob too)
David is the most annoying person of all to sue.
Thus while it's POSSIBLE, that Alice will sue David who will counter-sue Bob, which is the situation that you expect, I honestly doubt that Alice will bother to go after David until going after Bob is for some reason quite impractical.
Which is why we aren't seeing suits against downloaders yet. RIAA et al COULD sue downloaders. But it is far more efficient to sue uploaders at the time being. And they'd really prefer to sue facilitators above all else.
You are suggesting that tens of millions of ordinary innocent websurfers are each guilty of numerous infringments EVERY DAY. As opposed to a far far smaller number people who ARE responsible for putting putting infringing material up.
I am suggesting that this is the absurd position that is the end result of the MAI and Utah Lighthouse decisions.
I think it's asinine, and a clear example of why we need to burn copyright to the ground and then rebuild it to actually benefit society as a whole.
But I think that as it stands now, the law of the land is that yes, there are tens of millions, if not many, many more infringments every day. Many will be fair use, but not all of them, and that's a defense of last resort anyway.
False. Fair use allows an individual to make one copy of part of a book or journal or magazine for their own "fair use". If an instructor wishes to distribute an entire chapter or article to the entire class, royalties are due to the author and/or publisher. Yeah, it seems like a loophole, but there's a difference between putting a book on reserve and allowing students to photocopy the relevant chapter and handing out 30 copies to an entire class.
False.
Fair use permits everything and nothing. That is, there are no absolutes as to what is and is not a fair use. Anything MIGHT be, or might not be. It _depends_. It depends on the specific facts of the fair use in question, as analyzed through the four-step test of 17 USC 107.
Under the right circumstances, it is totally okay to distribute an entire copy of a book. Under other circumstances it would not be okay to distribute evne a paragraph.
It always depends.
If it's a recipe from a cookbook it's not even copyrightable to begin with. So what's the big deal?
That's not much of a test.
No.
While I certainly support people's efforts to obtain educations for their children, most artists would not benefit from this. Artists generally don't make a significant amount of money from royalties (which copyrights impact, as opposed to artistic labor such as concerts, or the sale of actual pieces of art as tangible things). Art is just not a money making profession. A few people can become tremendously sucessful as artists -- but the odds of being one of them are on par with winning the lottery. And of course, the economic value of those few works that have ANY noteworthy value to begin with declines rapidly over time.
So the only people that would get enough money from a life+20 term -- or even a term over perhaps 20 years -- are the people who are raking in a fortune, and thus don't NEED the extra money just to send their kids to college.
Thus it is extremely unfair to have long terms as a system for providing for widows and orphans since it only helps a small group of them (those that are the widows and orphans of artists), AND it is a tremendous failure because most of those artists never made, and never will make, enough money to provide for their loved ones anyway. A life+20 or longer term does NOT translate out into making money. Probably it's economically worthless, and if it's not it's probably only worth less than you could make at a minimum wage job.
The ultra-small minority of people (often not the artists) who hold copyrights to very successful works will of course benefit tremendously. This could be worth millions of dollars to them. But they're already making assloads of money -- do we need a half-assed flop of a social program to provide for them?
If you want a widows and orphans fund, if you want to help kids go to college, then may I suggest that you just have the government directly fund such things? It's fairer, since you don't have to be a close relative of an artist to qualify, and it's simply more practical since more than a fraction of 1% of people will actually benefit from it!
Sadly, you have no idea what you're talking about.
Fair use is a very broad doctrine. It _might_ apply to literally any kind of infringement whatsoever. No one factor -- such as whether a use is a literal copy or transformative -- controls the entire analysis.
Instead, each and every time that the fair use analysis is conducted, all four factors of the fair use test (see 17 USC 107) must be considered.
The example that immediately springs to mind is if someone made a high-quality -- let's say exact copy -- of a work for noncommercial educational or research purposes.
In either case they encouraged both reproduction and distribution.
Well, aside from that that doesn't seem to have been raised, forcing the entire argument to rely on the downloader, the uploader's infringement is one of distribution. Distribution AFAICT is illegal regardless of whether there is actual distribution, that is, plaintiffs do not have to wait until someone actually transfers a copy illegally, since the standing offer regardless of whether anyone takes infringer up on it, is sufficient. Since the Utah Lighthouse uploaders were uploading _already_, i.e. distributing already, defendants were not contributing to that.
Instead defendants merely encouraged downloading.
The sender has deceived me with a false grant of implicit permission.
And if copyright weren't a strict liability statute, that might mean something. Perhaps you'd have grounds for a counter-suit against the sender for his having deceived you, but that doesn't bar your liability to the actual copyright holder as things stand now.
Well, I don't know. It has to be a Napster user to serve as a foundation for the contributory and vicarious infringement analyses. While it might not have to be the downloader, that leaves the uploader, of whom the same argument could be made. I'm not sure whether later courts would hold that the 9th Circuit didn't decide the issue, but I do agree that issues that don't have to be decided to resolve a case are not.
This case has the same problem as the Napster case. The defendant is not the downloader. The defendant doesn't care who is infringing, he's simply stuck with the fact that someone is infringing. Nobody has yet been able to point to a case where infringment was actually brought against someone for downloading.
No, I think that Utah Lighthouse does in fact decide that downloaders are infringing. No one else is accused of doing so in a way that could support the contributory claim.
The other people posting weren't at issue, since defendants in that case didn't have anything to do with that reproduction. They encouraged downloading only, and were successfully sued for it on the grounds that the downloading specifically was illegal.
Any time you "copy" anything other than a program into RAM you are commiting copyright infringment. The result is stupid, you may as well make computers illegal.
Well, the infringement might be mitigated against by implicit permission granted by the copyright holder. But yes, I agree that MAI is a stupid decision. And that downloaders shouldn't face so much liability, at least not innocent downloaders.
No, plaintiff alleged two types of primary infringement: infringement of the reproduction right and infringement of the distribution right. Defendant Napster would therefore have desired to attack both branches, either claiming that no infringement occurred, or that the infringement was permissible due to other portions of the copyright law such as the fair use defense. This is because if any of Napster's users were infringing, this could support the contributory and vicarious infringement claims.
(2) The ordinary act of websurfing is not copyright infringment. Many items placed on the web were infringingly placed on the web, for example every time someone reposts a full article here on Slashot without permission. The moment YOU happen to come across that page YOU have just downloaded it. If downloading is infringment then EVERYONE who ever surfs the web is guilty of innumerable counts of infringment, including YOU.
Yes. This line of reasoning is based on the MAI v. Peak decision in the 9th Circuit that held that the making of a copy of information on a computer, even merely a copy to RAM that was necessary in order to use software, constituted infringement, all else being equal.
There HAVE been cases where web browsing of improperly accessible material was held to be an infringement upon which a contributory infringement suit could be brought. Utah Lighthouse, 75 F. Supp. 2d 1290 (1999) instantly springs to mind.
The court there held:
(Some internal citations deleted for clarity).
It is in general impossible for a person receiving a file to know or to determine whether or not the uploader is licenced to to make and distribute copies. It is in general impossible for the person to know the actual contents of the file before receiving it.
Knowledge isn't necessary for copyright infringement. It's a strict liability statute. If you do it, no matter how innocent you are, it doesn't change that you did it -- you're still liable.
Your interpretration
The District Court in the Napster case, 114 F. Supp. 2d 896, 911 (2000), concluded that there had been a prima face showing of infringement by users as an element in a contributory or vicarious infringement analysis. At that point that court did not differentiate between uploaders and downloaders, but it did say that "virtually all Napster users engage in the unauthorized downloading or uploading of copyrighted music." Additionally, Napster's rebuttal did tend to focus on downloading being fair use, though this was rejected. Id. at 912.
In the appellate Napster decision, the Ninth Circuit noted that Napster did not appeal the holding of prima face infringement. 239 F.3d 1004, 1013 (2001). The court there examined the issue anyway, as it was still a threshold issue that governered the need for the remainder of the contributory and vicarious infringement analyses, and pertinent defenses.
Id. at 1013-14 (internal citations omitted, emphasis mine).
As for getting into the nitty-gritty details of who's making the copy, the end result of the process results in a new copy residing on downloader's drive. Even if additional incidental copies were made along the way, downloader still used those incidental copies to create a copy on his own machine. It'll be enough for a court, which at any rate is somewhat more interested in using their common sense than they are in denying it.
While this is an interesting position, bear in mind that what I said was that "perhaps some of the /. crowd feel that copyright infringement ought to be, &c."
As it stands now, however, infringement is typically infringement regardless of whether it's a commercial use or not. There may be specific statutory exemptions that rely on a commercial/noncommercial distinction, e.g. 1008 (though n.b. the definitions in 1001 are critical to properly reading 1008), but on the whole your statement is erroneous given existing law. (I assume US law here)
That doesn't mean you can't feel that copyright law ought to be changed to fall in line with your wishes though.
Well, copyright is both a criminal and civil issue.
For example, suppose I hit you on the head with a bat. The police might, or might not, arrest me, and the state might prosecute me for hitting you. If they won, they could put me in prison.
However, that has no bearing on whether you could independently sue me for battery. You couldn't get me thrown in jail, but you could get money damages to compensate you for your injuries, and perhaps even additional damages to deter me from hitting other people.
The former is criminal, the latter is civil.
RIAA and its members are bringing civil suits against people to compensate them for the damages that particular instances of copyright infringement have caused them. They're not getting people thrown in jail -- the Department of Justice decides whether or not to prosecute copyright infringers criminally.
Boy are you wrong.
First, file serving is not copying. File serving (at least in this context) is a violation of the copyright holder's exclusive right to _distribute_ copies of his work.
Downloading is copying (i.e. making a copy of data from a master stored on the remote server), and and is a violation of the copyright holder's exclusive right to _make copies_.
This is all terribly clear in 17 USC 106, and I suggest that you take a look at it. If you persist in arguing that downloading isn't infringement, please show something to support this claim. But you might want to read the Napster decision by the 9th Circuit, which points out that Napster was liable as a contributory and vicarious infringer for the infringements of its users, which the court says were distribution by uploading users and copying by downloading users.
Just because it is a little harder to go after downloaders, and just because they haven't gone after downloaders yet, that doesn't mean that it's legal.
The $150,000 fine per infringement should only be applicable as a punishment for the WHOLE infringement, as in for ALL the illegally distributed copies of one particular song.
It is, but also per-infringer. I.e. whether you infringe on a single copyright once or a million times, the statutory damages don't multiply.
Well, what people were saying was that it was inappropriate to sue Napster for facilitating infringement. That doesn't mean that it's an incompatable position with not wanting ordinary people sued for infringing P2P activity either.
/. crowd feel that copyright infringement ought to be a remedy available only against commercial infringers.
E.g. perhaps some of the
Ever hear of Chapter 7 Bankruptcy? Sure, it's not a trick that works frequently, but for people without assets, it's great.
And what happens when everyone wants to teleport to the same place at once? There's a traffic jam when you're getting in or out of the teleporter booth. Teleporters only would be practical if you had site-to-site teleporters.
Yeah, but that's just what makes Boston charming is all, instead of a faceless anonymous grid.
Of course, what's even better is the stretch of 128 down by Dedham where the signage indicates that you're going north and south simultaneously. (e.g. 128 south is also 93 north) Meanwhile you're actually pointing east-west at the time.
Comedy gold.
Well, the Court ruled long ago that schoolchildren cannot be forced to say the pledge.
In fact, what they said was more or less that the government can NEVER require people to proclaim any sort of mandated belief or orthodoxy. No one should ever have to pledge unless they actually mean it, and it is voluntary. Indeed -- isn't it a worthless pledge otherwise, much like a religious conversion at gunpoint?
Teaching about our history or government is fine -- but the pledge doesn't do that. It affirms a belief.
I strongly suggest that you read the relevant case on this issue and rethink your position. A copy of the Barnette case may be found here.
Congress didn't exist until the Constitution was written
Actually it kind of did.
The First Continental Congress met in Philadelphia in 1774, but ultimately did little more than complain to England. They met again in 1775 as the Second Continental Congress. They -- after a VERY long period of not doing much -- wrote the Declaration of Independence the next year. They also wrote the Articles of Confederation, which was the first government of the United States. When it turned out to not work so well, a Constitutional Convention met to reform the Articles (immediately they decided to just throw them out and start over) under the auspices of Congress. The Convention finished it, sent it to Congress, which sent it out to the states, it got ratified, and then we wound up with a federal Congress. Congress changed significantly under the new Constitution, but arguably it's still supposed to be more or less the same body that dates back to 1775. It's at least closely related to it.
Yeah, the thing is though, that it takes a hell of an issue to make it through Congress and then through 3/4 of the states within a few years (as is the common practice now).
For example, flag burning was held constitutional quite a while ago now, and no amendment against it has yet come to pass.
In fact, in the last two hundred years, we've seen only 17 amendments passed beyond the initial bill of rights.
Most of these deal with voting or other issues relating to elected offices: The 15th, 19th, and 26th amendments expand the franchise to racial minorities, women, and those over 18, respectively. The 24th getting rid of the poll tax. The 23d giving DC presidential electors. The 17th making senators popularly elected. The 12th, 20th, 22d, and 25th all relating to the office of the Presidency -- who's eligible, who succeeds to it, how the voting is conducted, etc. The 27th is a revived amendment that was originally proposed as part of the Bill of Rights, and limits Congressional compensation.
That's 11 of the 17.
The 11th took care of a minor federalism issue that cropped up very early on due to ambigious wording of Article III.
The 13th and 14th (and 15th again) are reactions to the Civil War. Of all the post BoR amendments, it's the 14th that's been the most important.
The 16th permitted Congress to enact a federal income tax.
The 18th was prohibition, which is as stunningly a stupid idea as a pledge amendment would be, and it was repealed promptly by the 21st.
So if you really think that it's likely that we'd pass a pledge amendment, you must be nuts. There have been numerous stupid proposals in the past, but hell -- they never even manage to get out of Congress! In our entire history, only 33 ever managed to even make it as far as being proposed to the states. (such as the infamous pro-slavery amendment that was sent out on the eve of the Civil War)
What will really happen is that people will grumble a bit, but it won't be a big deal.
Because they constitute an establishment of religion, or so the 9th Circuit twice found to be the case. And IIRC the District Court also held for Newdow.
This would not be good for the government to require teachers to say, if such were the case. But it gets worse.
It's certainly bad for the government to require people to recite a statement that operates as an establishment of religion when the requirement is intended to cause young, impressionable children to fall in line with it despite the children unknowingly not actually having to.
That is, the state can't require kids to recite the pledge (and this was so held by the S.Ct. back in 1942 -- notably because they felt, even at the height of WW2, that to demand patriotic statements or any other government-imposed orthodoxy would be anti-American), so they're trying to weasel around that by having teachers lead students in the pledge, which takes advantage of the fact that little kids don't know that they don't have to say the pledge in the first place.
I personally don't much care for people who decide to trick children merely because the children don't know any better, particularly with regards to as serious a matter as religion. It seems very underhanded. And very inappropriate for the government to be doing; we ought to be able to trust the government, but this seems to be an abuse of that trust.
Myself, it wasn't until I was in 11th grade that I realized how stupid the pledge was, and stopped saying it. (Though not for religious purposes; I stopped saying it because I feel that people don't owe the government or the country anything, but as both are our creations, they owe their allegience to the people) For this, pressure was put on me, but as I refused to knuckle under, they had to let me not do anything.
It's just stupid to require an eight year-old to exhibit the same sorts of convictions and defy authority just to not do something that it is unconstitutional to demand of him anyway! If we were talking about adults, the coercive nature of the regulation in question might not be as big a deal. But under the circumstances, it is a big deal.
No, I think that it does promote religion.
That being said, the government can't manage to avoid doing anything that might conceivably promote religion. E.g. it cannot discriminate against religious schools in limiting the scope of an otherwise generally applicable voucher program. It might be said that it promotes religion when it does that, but if it is of general applicability, it's likely less of a colorable discrimination in favor of than failing to extend it to them would be definate discrimination against.
It's not easy to maintain the balance of neither favoring nor _disfavoring_ religion.
Supreme Court Of The United States