once one makes explicit the obvious truth that the placement of a spam filter constitutes a global revocation of any possible consent to send spam to that user or ISP
But that's not revocation. At least, it's not good enough. Remember, the revocation notice has to be reasonable. A 'no soliciting' sign is no good if you keep it in your basement out of sight. No solicitor could be expected to know of it unless it could be shown that they _actually_ knew, which is essentially the same as telling them in the first place.
A spam filter is no different than the mental filter I use to sort through my mail when it arrives in my mailbox. Some mail is whitelisted -- bills, letters from people I know, etc. Other mail is filtered out -- obvious junk mail. Some mail seems to be important, and not an ad, without actually going so far as to be fraudulent as to what it is. It might avoid my mental filter and wind up being opened and read before I recognize it for what it is. (obvious junk mail just gets thrown out unopened) This is the real world equivalent of spam that's trying to get around a filter.
The fact that I don't read all my mail is not reasonable notice to junk mailers that I am refusing ALL junk mail. There's no notice to ignore by sending me junk mail that doesn't immediately seem to be junk mail.
A spam filter is pretty likely not good notice; I can think of a few different ways of providing notice that are better. A centralized listing is probably ideal -- everyone would know, or at least would be expected to know, to look there first.
Besides -- treaties virtually never provide individuals with a cause of action. If Congress decided to ignore their responsibilities under the Berne Convention, no one can actually overturn what they did, for lack of standing. Other nations may get upset and treat us differently, but they still cannot force change through the system.
Yeah, but the intent isn't _just_ to get people to make stuff. The intent is to benefit the public. The public _may_ be benefited if you make stuff, but the public is also benefited by having a healthy public domain.
I sincerely doubt that you would cease your personal correspondence with people if it weren't copyrighted. I don't think that anyone writes letters to their friends because they think they'll be able to profit off of them later should they be published.
If something is to be copyrighted, it should be _worth_ being copyrighted. That is, the author should be willing to jump through some hoops, so secure is he that his work will later profit him. If he's not, it seems rather wasted to give him protection for something he doesn't value economically. I say economically because copyright only benefits an author in that fashion; if an author wants to create art for art's sake, or wants the fame, he'll be encouraged without the copyright.
I don't think it'll work. It's only barely been touched on in the courts, due to the situation not arising much, but a trademark is basically an inferior right to a copyright; it cannot supplant it. Congress isn't allowed to grant anything that can do the work of a copyright that isn't one, or that lasts forever.
If the work falls into the public domain, I see little chance of a trademark surviving. Disney seems to have thought so too, as otherwise they wouldn't've bothered with the CTEA.
There is no traditional lockean approach to copyrights. Copyrights are utilitarian, not lockean. Locke can go to hell -- he has no place in a discussion of IP.
Well, they're not, really. There's a DMCA equivalent in Australia, regarding circumvention devices. These cases have consisted of judges trying to decide if this is a circumvention device or not. It's just interpretation, as usual. Of course, there is a problem with their legislature in that they passed the damn anti-circumvention law to begin with, which gave rise to the whole problem.
Dunno. I'll have to dig out my copy of the UCC. I doubt it though -- if you're timely rejecting goods sold based on the terms, I'd imagine you get to get your money back, if you return the goods.
If you can't do that, then it seems unlikely that the EULA is rejectable, despite not having gotten to see it when you did have an opportunity to reject. That would put it into a whole new ballpark. Probably turn it into a straight-up sale of goods like anything else.
They can't rewrite that part of the EULA -- if they didn't give people the opportunity to reject the thing for their money back, they'd jeopardize the enforcability of the entire shebang. Judge Easterbrook wrote the very pro-EULA "ProCD" opinion, but take a look at it for his discussion about the need for an opportunity for rejection.
No, actually I'm very pro-copyright. But it has to be the right kind of copyright; the right basic policy, and the right way of implementing that policy. Currently we barely have either.
This is a straw man, and not applicable to the point at hand.
Not in the least. There are plenty of people now who are seriously pushing for permanent copyrights. They want to still be making money from their works thousands of years from now. It'll hurt people in the future if we make such a stupid mistake now, just as it would hurt us now if our ancestors had made such a stupid mistake in their time.
It is fascinating that you see artists as somehow different from you.
Actually I am an artist.
What I'm saying is not that they should be grateful to recieve compensation, I'm saying that they should be grateful to recieve a copyright that permits them compensation.
Art is very important, but it is quite different from most other goods. Indeed, if it were not, we would never have needed to invent copyrights out of whole cloth to begin with; property law was well known in the 18th century, but the originators of copyrights didn't bother with it or consider works of art to be subject to it. (copies, as distinguished from works, are however)
The service of creating art is no different from other services, OTOH, but that would only extend to the creation of an original copy, and not seem to bar people from creating later copies on their own. If I call the plumber out to fix something, I will carefully observe him, and in the future perhaps be able to do the repair myself; he's not entitled to my hiring him for a particular task even if he's done it before.
Who's an apologist? I hate spam. However, I like the First Amendment, and I don't see a way to pass laws against ALL spam without runing afoul of freedom of speech.
By definition, filter cracking disguises spam in order to give the false impression that it is not spam.
I'm just not sure that that's true. If a spam that wasn't otherwise disguised read 'advertisment' or 'a.d.v.e.r.t.i.s.e.m.e.n.t' it's still clear what it is. But if it gets past your filters, it just means you have crappy filters. The disguise thing is only relevant when it fools humans. If it fools a machine, that just goes to show that machines aren't as good at doing some things as humans are.
Such a person deserves to be compensated for that work just as much as do you for working your job.
No, they don't. That would amazingly disasterous for society. Imagine if we were still paying the descendents of the guy that invented fire, or the wheel, or the letter 'e' -- they did hard work doing that stuff, and your stupid argument is perfectly applicable to them.
The better solution is that they can have whatever people choose to give them. We don't give artists a copyright because they deserve it. We give it to them because it suits _our_ purposes to give it to them. If it didn't, they wouldn't get it. When they do get it, the idea is that they'll play right into our hands and leave us better off than if we hadn't bothered. If artists happen to profit or not profit, that's irrelevant, except for insofar as it has an impact on everyone generally.
When you buy a CD, you own the CD and the copy of the music on the CD insofar as it is ownable by anyone.
Music in a general sense, however, is too nebulous to be owned by anybody at all.
There's a copyright on the work embodied in the copy, but this doesn't diminish ownership of that copy any more than my ownership of my car is meaningfully limited by laws against speeding with it.
And of course, the biggest problem with the assertion that there's a license is -- there's no license. A license is a contract. It has to be oral or written. If there's a license, you ought to be able to show it to us, or at least refer us to the specific person that you made it with, and tell us about what the precise terms are.
"Sent in a trespassing manner" includes any attempt whatsoever to circumvent a spam filter.
I don't think so.
Assuming that it isn't fraudulent, i.e. disguised as something it is not so as to circumvent the filter, I don't think that this is the case. Spam filters are basically just an extension of one's own decisions as to what is appealing or not. Advertisers have the freedom, I think, to tailor their message so that it has the most appeal and 'circumvents' the audience's own discriminating tastes. If people build a machine that does that for them, I see little wrong with the same approach.
Filters aren't the same as a clear sign. E.g. if you have a white picket fence around your house, with a gate, a solicitor, barring proper notice, is allowed to open the gate to come talk to you, all else being equal (e.g. time of day, etc.).
Again, you are taking the absurd position that it's OK for street ranters to grab and hold bystanders until each bystander tells them to go away.
I am not. OTOH it is okay for street ranters to follow someone and continue talking at them until told to go away. And frankly, as it's on the street which is public to all, I doubt telling them to go away has any weight behind it.
A better analogy would be that it's OK for religious missionaries and brush salesmen to come knock on your door in a reasonable manner to try to sell you religion or brushes, unless you give them notice to stop.
The analogy breaks a little bit in that repeated spam is not nearly so bad as repeatedly knocking on the door, and that reasonable hours don't apply to email.
Spammers are NOT doing anything analagous to "grabbing and holding" people. They're just taking advantage of people's bad habit (via the mail system) of accepting messages unread, regardless of the source. People handing out leaflets on the street would love it if everyone had a habit of taking the leaflet and only then deciding whether to discard it. If you're going to pre-accept communications to a certain degree, you're going to get some you don't want. Be more discriminating is my advice.
No, Right. In fact, the US Supreme Court has ruled so. "Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit. We categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another."
Are you a Supreme Court justice? Didn't think so.
No, but at least I can understand the Court when I quote them. (well most of the time -- some cases are really impenetrable)
See, you don't understand what a right is.
The Court is saying that it is not permissible for people to send communications to people regardless of whether those people want them or not. That is, if Alice says to Bob, 'don't spam me,' Bob has no _right_ to ignore her and spam away.
They DIDN'T SAY that it is not permissible to send spam. It's TOTALLY permissible to send spam. As long as there is permission to do so!
And permission to be communicated at is pretty typically assumed to be granted unless it is explicitly revoked.
If Alice NEVER tells Bob to not spam her, he is free to do so. Only when Alice DOES tell Bob to stop spamming her must he stop.
THAT is what your S.Ct. quote means. And that is EXACTLY what I've been saying. So while I might not be a Supreme Court Justice (still waiting for the President to nominate me) at least I'm not a blithering idiot who quotes them without understanding what they were getting at.
So you're saying that a spammer should have the right to go to a TV or radiostation and demand airtime for free? Or to go to skywriters, or newspapers, or letter carriers, and demand free services?
Nope. Apparently you not only cannot understand what the Court is saying, you don't understand what I'm saying either. So I have tried to keep it extra simple for you.
In normal advertising, the sender pays - with spam, the recipient pays.
No, both parties pay varying amounts in both. I could be doing better things with my time than sorting through junk mail or hanging up on telemarketers. They cost me money through attrition of my resources. EXACTLY the same as spammers do.
But by virtue of living in the real world, we grant permission for people to use these things in communication with us. Unless we explicitly revoke that permission, anyway, which you're free to do.
No, they're not equivalent. Your analogy is way off. OTOH, I see no recourse for people that want to send fraudulent advertising over email, and I think that that can be regulated at least.
But that won't stop truthful advertising, and there is a grey area as to how far it's possible to go without committing actual fraud.
My main problem with anti-spam advocates is that they forget that spam qua spam isn't regulable. It's only when there's something wrong with the spam -- it's fraudulent, it's incomplete, it's sent in a trespassing manner (n.b. permission is implicitly given until explicitly revoked, though) -- that regulation is appropriate.
Spam that doesn't suffer from these problems cannot be stopped through regulation.
There's a key difference between the media however. Postal direct-marketeers pay the postage. Telemarketers pay for their calls. Spammers make you pay instead.
Not really. There are costs associated with receiving communication by any of these mediums. It should come as no surprise, and it doesn't seem dispositive.
Spammers always use these dodges, and in fact must use these dodges in order to continue spamming.
No... fraudulent spammers use these dodges. As I've said before, I'm against fraud, but spam isn't synonymous with fraud. There can be perfectly truthful spam, and legislation targeted at spam of all kinds is doomed to fail. It's too broad, sweeping up the good with the bad. Legislation targeted only at fraud is what's needed, if anything.
Think about what you're saying here for just a moment. These sort of rules work well enough in meatspace, because you can put up such a sign, and because you aren't likely to have every door to door salesman on your doorstep at once. But on the net these rules are senseless and unworkable.
I disagree. It might require some tweaking of the way that email is sent, but I think that it is entirely possible to make the Internet equivalent of a no soliciting sign. Alternatively, a central registry could serve just as well -- phones cannot tell if there's a 'no soliciting' sign up, but the FTC is rolling out a 'do not call' list that should have the same legal effect.
Maybe that would work. But OTOH a court could pretty easily find that it is not reasonable to expect a spammer to search the google archive thoroughly (searching will be difficult if the notices aren't in a standard place or form, you know) before spamming.
Personally, I'd side with the spammer, unless this were a well-known and very commonplace practice.
Better would be something like the FTC's recently developed 'Do Not Call List,' which is highly prominent, being run by the federal govt., and probably set up to be rather easy for telemarketers to consult so as to respect it. I imagine that we will eventually wind up with something like that. (and note that the FTC list requires you to renew every five years)
Still does nothing for international spam, but neither would any other sort of state or federal law, so there's no better immediate alternative anyhow.
What email was designed for is irrelevant. It wasn't designed for personal communication either; in fact there were some debates in the ancient days of the ARPANet as to whether it was alright to send non-work-related messages over the thing. Telephones, incidentally, weren't designed for telemarketers, and I imagine that the postal system predates junk mail as well.
It's a medium of communication, and can be used for any sort of communicative purpose, basically.
As for TOS violations, if a spammer sends spam in violation of a TOS, that's a breach of contract, sure, but it is purely a private matter between him and his ISP. You aren't invited, and the two parties that are privy to the contract can always decide that the spam is a-ok. Receipt of spam in violation of a TOS strikes me as a pretty odd contractual term to have -- is your ISP threatening to cut you off because you _get_ spam? It seems dubious to me. Again though, it doesn't concern outside parties, such as the sender of the spam that puts the recipient into breach; the sender wasn't subject to that contract. Contracts are not generally applicable laws!
As for the obligation to inform, that's how it works generally in the real world, at least in the U.S. I don't see why it shouldn't apply to the net. Perhaps it is more polite to only send with advance permission, but that's true everywhere, and is really not relevant. You're talking about making people subject to lawsuits for mere communication. I would be quite afraid to require people to not speak unless spoken to in any context. The obligation to inform stands; you've shown no reason why it, as a SERIOUSLY MAJOR rule of life shouldn't apply here. It's definately what courts are going to do.
As for what spammers actually do in response to an explicit request to stop, _that's_ of some mild relevance.
See, you aren't paying close attention to exactly what I've been saying.
I AM defending the right of spammers to spam.
I AM NOT defending the right of spammers to send spam that contains fraudulent claims, including fraudulent headers, subject lines, or 'opt-out' addresses, etc.
I AM NOT defending the right of spammers to ignore explicit requests to stop, provided that the spammer is either actually aware of the request, or if the request was given in a form that spammers are reasonably likely to be aware of. (e.g. 'no solicitation' signs must be prominent, not hidden, to expect them to have lawful effect on solicitors that haven't actually seen them)
I AM NOT defending the right of spammers to send spam in a fashion that is harrassing, provided that a law is enacted prohibiting it, and provided that the law merely channels spam so that it is no longer harrassing, without impairing the ability of a spammer to send spam generally. (e.g. it's okay to have a law that prevents telemarketers from calling at certain hours of the day, but this cannot be abused so as to silence telemarketers generally)
So get this through your head -- I'm only defending spammers to the extent that they're not acting fraudulently, or ignoring requests to stop, or violating laws that are valid by not going so far as to silence them.
I admit, this is a subset of all the spammers that there are. But the key is, I am not against spam -- I am against fraud, or trespass, or harassment. These things may be commonly associated with spam, but they are NOT synonyms.
As long as the announcemen is prominent enough that a spammer actually does, or reasonably should be expected to, be aware of it, yeah.
This is similar to how a 'No solicitors' sign works -- it's effective, but only if it's sufficiently prominent. If you hid the sign in the basement, it's not reasonable of you to expect people coming up to the front door to be aware of it (though if they actually are, it still gets them).
A sufficiently prominent place given the architecture of Internet e-mail is an exercise I leave up to the reader. Enforcement, particularly of international spammers without assets in the US is another.
In most of these cases, I can't imagine that there would be a contested issue of fact. Where both parties agree as to the facts of the case, the judge will likely rule in summary judgment, and there won't be a jury, even in requested.
Actually while it's not relevant _here_ do note that some civil damage awards are not discharged by bankruptcy, e.g. alimony, child support, death or personal injury damages resulting from DUI accidents, etc.
Maybe they'll be able to cover costs, but this is not a money-making opportunity for the RIAA. The people they're suing don't have enough money to be worth suing. This is purely for deterrant effect. Similarly, none of the lawyers are making big bucks on this; they'll get their regular hourly fees, but that's hardly astounding.
Slashdot Mirror
once one makes explicit the obvious truth that the placement of a spam filter constitutes a global revocation of any possible consent to send spam to that user or ISP
But that's not revocation. At least, it's not good enough. Remember, the revocation notice has to be reasonable. A 'no soliciting' sign is no good if you keep it in your basement out of sight. No solicitor could be expected to know of it unless it could be shown that they _actually_ knew, which is essentially the same as telling them in the first place.
A spam filter is no different than the mental filter I use to sort through my mail when it arrives in my mailbox. Some mail is whitelisted -- bills, letters from people I know, etc. Other mail is filtered out -- obvious junk mail. Some mail seems to be important, and not an ad, without actually going so far as to be fraudulent as to what it is. It might avoid my mental filter and wind up being opened and read before I recognize it for what it is. (obvious junk mail just gets thrown out unopened) This is the real world equivalent of spam that's trying to get around a filter.
The fact that I don't read all my mail is not reasonable notice to junk mailers that I am refusing ALL junk mail. There's no notice to ignore by sending me junk mail that doesn't immediately seem to be junk mail.
A spam filter is pretty likely not good notice; I can think of a few different ways of providing notice that are better. A centralized listing is probably ideal -- everyone would know, or at least would be expected to know, to look there first.
Yeah, but we can renounce treaties too.
Besides -- treaties virtually never provide individuals with a cause of action. If Congress decided to ignore their responsibilities under the Berne Convention, no one can actually overturn what they did, for lack of standing. Other nations may get upset and treat us differently, but they still cannot force change through the system.
Yeah, but the intent isn't _just_ to get people to make stuff. The intent is to benefit the public. The public _may_ be benefited if you make stuff, but the public is also benefited by having a healthy public domain.
I sincerely doubt that you would cease your personal correspondence with people if it weren't copyrighted. I don't think that anyone writes letters to their friends because they think they'll be able to profit off of them later should they be published.
If something is to be copyrighted, it should be _worth_ being copyrighted. That is, the author should be willing to jump through some hoops, so secure is he that his work will later profit him. If he's not, it seems rather wasted to give him protection for something he doesn't value economically. I say economically because copyright only benefits an author in that fashion; if an author wants to create art for art's sake, or wants the fame, he'll be encouraged without the copyright.
I don't think it'll work. It's only barely been touched on in the courts, due to the situation not arising much, but a trademark is basically an inferior right to a copyright; it cannot supplant it. Congress isn't allowed to grant anything that can do the work of a copyright that isn't one, or that lasts forever.
If the work falls into the public domain, I see little chance of a trademark surviving. Disney seems to have thought so too, as otherwise they wouldn't've bothered with the CTEA.
There is no traditional lockean approach to copyrights. Copyrights are utilitarian, not lockean. Locke can go to hell -- he has no place in a discussion of IP.
Well, they're not, really. There's a DMCA equivalent in Australia, regarding circumvention devices. These cases have consisted of judges trying to decide if this is a circumvention device or not. It's just interpretation, as usual. Of course, there is a problem with their legislature in that they passed the damn anti-circumvention law to begin with, which gave rise to the whole problem.
Dunno. I'll have to dig out my copy of the UCC. I doubt it though -- if you're timely rejecting goods sold based on the terms, I'd imagine you get to get your money back, if you return the goods.
If you can't do that, then it seems unlikely that the EULA is rejectable, despite not having gotten to see it when you did have an opportunity to reject. That would put it into a whole new ballpark. Probably turn it into a straight-up sale of goods like anything else.
They can't rewrite that part of the EULA -- if they didn't give people the opportunity to reject the thing for their money back, they'd jeopardize the enforcability of the entire shebang. Judge Easterbrook wrote the very pro-EULA "ProCD" opinion, but take a look at it for his discussion about the need for an opportunity for rejection.
No, actually I'm very pro-copyright. But it has to be the right kind of copyright; the right basic policy, and the right way of implementing that policy. Currently we barely have either.
Actually copy protection is a subset of DRM. Both are extraordinarily evil and should be stamped out wherever possible.
This is a straw man, and not applicable to the point at hand.
Not in the least. There are plenty of people now who are seriously pushing for permanent copyrights. They want to still be making money from their works thousands of years from now. It'll hurt people in the future if we make such a stupid mistake now, just as it would hurt us now if our ancestors had made such a stupid mistake in their time.
It is fascinating that you see artists as somehow different from you.
Actually I am an artist.
What I'm saying is not that they should be grateful to recieve compensation, I'm saying that they should be grateful to recieve a copyright that permits them compensation.
Art is very important, but it is quite different from most other goods. Indeed, if it were not, we would never have needed to invent copyrights out of whole cloth to begin with; property law was well known in the 18th century, but the originators of copyrights didn't bother with it or consider works of art to be subject to it. (copies, as distinguished from works, are however)
The service of creating art is no different from other services, OTOH, but that would only extend to the creation of an original copy, and not seem to bar people from creating later copies on their own. If I call the plumber out to fix something, I will carefully observe him, and in the future perhaps be able to do the repair myself; he's not entitled to my hiring him for a particular task even if he's done it before.
Yes, if it were a lock. I think there's a significant difference between getting root on someone's computer and sending them an email.
;)
Except on Windows, where Outlook combines these two functions.
Who's an apologist? I hate spam. However, I like the First Amendment, and I don't see a way to pass laws against ALL spam without runing afoul of freedom of speech.
By definition, filter cracking disguises spam in order to give the false impression that it is not spam.
I'm just not sure that that's true. If a spam that wasn't otherwise disguised read 'advertisment' or 'a.d.v.e.r.t.i.s.e.m.e.n.t' it's still clear what it is. But if it gets past your filters, it just means you have crappy filters. The disguise thing is only relevant when it fools humans. If it fools a machine, that just goes to show that machines aren't as good at doing some things as humans are.
Such a person deserves to be compensated for that work just as much as do you for working your job.
No, they don't. That would amazingly disasterous for society. Imagine if we were still paying the descendents of the guy that invented fire, or the wheel, or the letter 'e' -- they did hard work doing that stuff, and your stupid argument is perfectly applicable to them.
The better solution is that they can have whatever people choose to give them. We don't give artists a copyright because they deserve it. We give it to them because it suits _our_ purposes to give it to them. If it didn't, they wouldn't get it. When they do get it, the idea is that they'll play right into our hands and leave us better off than if we hadn't bothered. If artists happen to profit or not profit, that's irrelevant, except for insofar as it has an impact on everyone generally.
No, he's basically right.
When you buy a CD, you own the CD and the copy of the music on the CD insofar as it is ownable by anyone.
Music in a general sense, however, is too nebulous to be owned by anybody at all.
There's a copyright on the work embodied in the copy, but this doesn't diminish ownership of that copy any more than my ownership of my car is meaningfully limited by laws against speeding with it.
And of course, the biggest problem with the assertion that there's a license is -- there's no license. A license is a contract. It has to be oral or written. If there's a license, you ought to be able to show it to us, or at least refer us to the specific person that you made it with, and tell us about what the precise terms are.
Laws are a different animal.
"Sent in a trespassing manner" includes any attempt whatsoever to circumvent a spam filter.
I don't think so.
Assuming that it isn't fraudulent, i.e. disguised as something it is not so as to circumvent the filter, I don't think that this is the case. Spam filters are basically just an extension of one's own decisions as to what is appealing or not. Advertisers have the freedom, I think, to tailor their message so that it has the most appeal and 'circumvents' the audience's own discriminating tastes. If people build a machine that does that for them, I see little wrong with the same approach.
Filters aren't the same as a clear sign. E.g. if you have a white picket fence around your house, with a gate, a solicitor, barring proper notice, is allowed to open the gate to come talk to you, all else being equal (e.g. time of day, etc.).
Again, you are taking the absurd position that it's OK for street ranters to grab and hold bystanders until each bystander tells them to go away.
I am not. OTOH it is okay for street ranters to follow someone and continue talking at them until told to go away. And frankly, as it's on the street which is public to all, I doubt telling them to go away has any weight behind it.
A better analogy would be that it's OK for religious missionaries and brush salesmen to come knock on your door in a reasonable manner to try to sell you religion or brushes, unless you give them notice to stop.
The analogy breaks a little bit in that repeated spam is not nearly so bad as repeatedly knocking on the door, and that reasonable hours don't apply to email.
Spammers are NOT doing anything analagous to "grabbing and holding" people. They're just taking advantage of people's bad habit (via the mail system) of accepting messages unread, regardless of the source. People handing out leaflets on the street would love it if everyone had a habit of taking the leaflet and only then deciding whether to discard it. If you're going to pre-accept communications to a certain degree, you're going to get some you don't want. Be more discriminating is my advice.
No, Right. In fact, the US Supreme Court has ruled so. "Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit. We categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another."
Are you a Supreme Court justice? Didn't think so.
No, but at least I can understand the Court when I quote them. (well most of the time -- some cases are really impenetrable)
See, you don't understand what a right is.
The Court is saying that it is not permissible for people to send communications to people regardless of whether those people want them or not. That is, if Alice says to Bob, 'don't spam me,' Bob has no _right_ to ignore her and spam away.
They DIDN'T SAY that it is not permissible to send spam. It's TOTALLY permissible to send spam. As long as there is permission to do so!
And permission to be communicated at is pretty typically assumed to be granted unless it is explicitly revoked.
If Alice NEVER tells Bob to not spam her, he is free to do so. Only when Alice DOES tell Bob to stop spamming her must he stop.
THAT is what your S.Ct. quote means. And that is EXACTLY what I've been saying. So while I might not be a Supreme Court Justice (still waiting for the President to nominate me) at least I'm not a blithering idiot who quotes them without understanding what they were getting at.
So you're saying that a spammer should have the right to go to a TV or radiostation and demand airtime for free? Or to go to skywriters, or newspapers, or letter carriers, and demand free services?
Nope. Apparently you not only cannot understand what the Court is saying, you don't understand what I'm saying either. So I have tried to keep it extra simple for you.
In normal advertising, the sender pays - with spam, the recipient pays.
No, both parties pay varying amounts in both. I could be doing better things with my time than sorting through junk mail or hanging up on telemarketers. They cost me money through attrition of my resources. EXACTLY the same as spammers do.
But by virtue of living in the real world, we grant permission for people to use these things in communication with us. Unless we explicitly revoke that permission, anyway, which you're free to do.
No, they're not equivalent. Your analogy is way off. OTOH, I see no recourse for people that want to send fraudulent advertising over email, and I think that that can be regulated at least.
But that won't stop truthful advertising, and there is a grey area as to how far it's possible to go without committing actual fraud.
My main problem with anti-spam advocates is that they forget that spam qua spam isn't regulable. It's only when there's something wrong with the spam -- it's fraudulent, it's incomplete, it's sent in a trespassing manner (n.b. permission is implicitly given until explicitly revoked, though) -- that regulation is appropriate.
Spam that doesn't suffer from these problems cannot be stopped through regulation.
There's a key difference between the media however. Postal direct-marketeers pay the postage. Telemarketers pay for their calls. Spammers make you pay instead.
Not really. There are costs associated with receiving communication by any of these mediums. It should come as no surprise, and it doesn't seem dispositive.
Spammers always use these dodges, and in fact must use these dodges in order to continue spamming.
No... fraudulent spammers use these dodges. As I've said before, I'm against fraud, but spam isn't synonymous with fraud. There can be perfectly truthful spam, and legislation targeted at spam of all kinds is doomed to fail. It's too broad, sweeping up the good with the bad. Legislation targeted only at fraud is what's needed, if anything.
Think about what you're saying here for just a moment. These sort of rules work well enough in meatspace, because you can put up such a sign, and because you aren't likely to have every door to door salesman on your doorstep at once. But on the net these rules are senseless and unworkable.
I disagree. It might require some tweaking of the way that email is sent, but I think that it is entirely possible to make the Internet equivalent of a no soliciting sign. Alternatively, a central registry could serve just as well -- phones cannot tell if there's a 'no soliciting' sign up, but the FTC is rolling out a 'do not call' list that should have the same legal effect.
Maybe that would work. But OTOH a court could pretty easily find that it
is not reasonable to expect a spammer to search the google archive
thoroughly (searching will be difficult if the notices aren't in a
standard place or form, you know) before spamming.
Personally, I'd side with the spammer, unless this were a well-known and
very commonplace practice.
Better would be something like the FTC's recently developed 'Do Not Call
List,' which is highly prominent, being run by the federal govt., and
probably set up to be rather easy for telemarketers to consult so as to
respect it. I imagine that we will eventually wind up with something like
that. (and note that the FTC list requires you to renew every five years)
Still does nothing for international spam, but neither would any other
sort of state or federal law, so there's no better immediate alternative
anyhow.
What email was designed for is irrelevant. It wasn't designed for personal
communication either; in fact there were some debates in the ancient days
of the ARPANet as to whether it was alright to send non-work-related
messages over the thing. Telephones, incidentally, weren't designed for
telemarketers, and I imagine that the postal system predates junk mail as
well.
It's a medium of communication, and can be used for any sort of
communicative purpose, basically.
As for TOS violations, if a spammer sends spam in violation of a TOS,
that's a breach of contract, sure, but it is purely a private matter
between him and his ISP. You aren't invited, and the two parties that are
privy to the contract can always decide that the spam is a-ok. Receipt of
spam in violation of a TOS strikes me as a pretty odd contractual term to
have -- is your ISP threatening to cut you off because you _get_ spam? It
seems dubious to me. Again though, it doesn't concern outside parties,
such as the sender of the spam that puts the recipient into breach; the
sender wasn't subject to that contract. Contracts are not generally
applicable laws!
As for the obligation to inform, that's how it works generally in the real
world, at least in the U.S. I don't see why it shouldn't apply to the net.
Perhaps it is more polite to only send with advance permission, but that's
true everywhere, and is really not relevant. You're talking about making
people subject to lawsuits for mere communication. I would be quite afraid
to require people to not speak unless spoken to in any context. The
obligation to inform stands; you've shown no reason why it, as a SERIOUSLY
MAJOR rule of life shouldn't apply here. It's definately what courts are
going to do.
As for what spammers actually do in response to an explicit request to
stop, _that's_ of some mild relevance.
See, you aren't paying close attention to exactly what I've been saying.
I AM defending the right of spammers to spam.
I AM NOT defending the right of spammers to send spam that contains
fraudulent claims, including fraudulent headers, subject lines, or
'opt-out' addresses, etc.
I AM NOT defending the right of spammers to ignore explicit requests to
stop, provided that the spammer is either actually aware of the request,
or if the request was given in a form that spammers are reasonably likely
to be aware of. (e.g. 'no solicitation' signs must be prominent, not
hidden, to expect them to have lawful effect on solicitors that haven't
actually seen them)
I AM NOT defending the right of spammers to send spam in a fashion that is
harrassing, provided that a law is enacted prohibiting it, and provided
that the law merely channels spam so that it is no longer harrassing,
without impairing the ability of a spammer to send spam generally. (e.g.
it's okay to have a law that prevents telemarketers from calling at
certain hours of the day, but this cannot be abused so as to silence
telemarketers generally)
So get this through your head -- I'm only defending spammers to the extent
that they're not acting fraudulently, or ignoring requests to stop, or
violating laws that are valid by not going so far as to silence them.
I admit, this is a subset of all the spammers that there are. But the key
is, I am not against spam -- I am against fraud, or trespass, or
harassment. These things may be commonly associated with spam, but they
are NOT synonyms.
As long as the announcemen is prominent enough that a spammer actually does, or reasonably should be expected to, be aware of it, yeah.
This is similar to how a 'No solicitors' sign works -- it's effective, but only if it's sufficiently prominent. If you hid the sign in the basement, it's not reasonable of you to expect people coming up to the front door to be aware of it (though if they actually are, it still gets them).
A sufficiently prominent place given the architecture of Internet e-mail is an exercise I leave up to the reader. Enforcement, particularly of international spammers without assets in the US is another.
Why would there be a jury?
In most of these cases, I can't imagine that there would be a contested
issue of fact. Where both parties agree as to the facts of the case, the
judge will likely rule in summary judgment, and there won't be a jury,
even in requested.
Actually while it's not relevant _here_ do note that some civil damage awards are not discharged by bankruptcy, e.g. alimony, child support, death or personal injury damages resulting from DUI accidents, etc.
Maybe they'll be able to cover costs, but this is not a money-making opportunity for the RIAA. The people they're suing don't have enough money to be worth suing. This is purely for deterrant effect. Similarly, none of the lawyers are making big bucks on this; they'll get their regular hourly fees, but that's hardly astounding.