FYI, RIAA was founded in 1952. Radio became popular in the 20's and 30's. Though a lot of radio at that time was not music. It was used for shows, the way that TV is now. In fact a fair number of TV shows started out as radio programs.
When discussing compulsory licenses in the realm of copyright, it isn't compulsory against you, the individual. It's compulsory against copyright holders.
That is, they HAVE to let you cover a song if you pay the fee set by law. Even if they hate you, or would prefer to charge a million, billion dollars. But you certainly don't have to ever take advantage of that, in which case you pay nothing and don't cover the song.
That said, this proposal is not much like current compulsory licenses, so I share your apprehension.
No, I do not believe that spammers are generally truthful. But some are. And if false spam is cracked down upon then at least we'll only have to contend with truthful spam, which is better than the current state of affairs.
And while I agree that there is cost shifting, I do not believe that it is significant in the aggregate, or significant as with regards to any individual user. Nor am I convinced that ISPs are suffering in any particular way, or that it would be wise for legal relief to be available since ISPs can solve this problem themselves to a large extent.
I do continue to believe that a blanket ban on spam would be unconstitutional, but partial bans (e.g. bans on false spam) would not be. And I don't think the TCPA case is applicable, in part because costs involved with faxes are quite different from costs involved with email.
I have not to my knowledge equated all bulk email with spam, though feel free to point out if I have, and at very least I do not mean to. Opt-in is perfectly unobjectionable to me provided that you can opt-out later. The government absolutely has no business preventing communications that people want to send and other people want to receive, though in the commercial context some interference is still possible (again requiring truthfulness).
I absolutely claim that spam is not a manner of communication. Furthermore time/place/manner restrictions can never constitutionally be so onerous as to hinder all communication. So, for example, a law prohibiting telemarketing during certain times of day is ok; a law prohibiting it altogether is not. I have yet to see a t/p/m restriction applied to spam that makes sense. You haven't brought this issue up until now anyway, so I really wonder where you get off making claims as to what I think.
I do think that spam bans are in part aimed at easing burdens on ISPs and users, though more motivated due to a dislike of advertising, typically false advertising, BUT I feel such burdens are so minimal that they don't serve to justify the ban.
And I do think that banning unsolicited bulk ADVERTISING is content discriminatory, to use ALL of my words. Bulk email without regards to content is not, but that's not what I was discussing. Bulk email (such as a fiction mailing list, or a legal discussion list that I am on) certainly isn't necessarily spam -- and this is a discussion about spam.
And I don't think that opt-out currently works, but I do think that if you do opt-out and it isn't respected, that then you have a GREAT grounds for a suit against the spammer, one which I wholly endorse. What I think is that we needs laws to ensure that opt-out _does_ work, but then we should leave the decision as to whether or not to opt out in the hands of users (and to a lesser extent ISPs, though I'd discourage them from making such decisions unilaterally; I prefer ISPs to fit in the common carrier mold).
So, in sum, I think you're simply too stupid or obstinant to actually read what I've been writing. Reality has no meaning to you -- you're seeing what you want to see, and to Hell with those who dare to disagree with you.
I have no problems restating something if I haven't been clear, but you're simply ascribing positions to me that are not based in reality. Still, I'm always open to continue the discussion -- the ACTUAL discussion, and not the one in your head -- whenever you are.
I disagree. There are surely some truthful spammers. At any rate, I never said that I believe that the First Amendment protected false advertising, so it's pretty clear that I'm ONLY saying that truthful spammers are acceptable.
You claim that spam is free speech, and laws against it would be thrown out due to the first amendment.
No. I only say that _some_ spam is protected speech, AND that the degree of protection it enjoys isn't enough to prevent some regulation (again with the truthful advertising) but is enough to prevent, for example, a ban.
Now, regarding Central Hudson, you didn't understand the purpose of the quote. It was a direct response to your statement that you posted quotes from opinions that "directly disagree" with my statement that "[a]dvertisements are a form of free speech."
The quote from Central Hudson explicitly says that the First Amendment protects commercial speech.
Thus, you were wrong.
I did NOT however quote Central Hudson to indicate that spam, in all its forms was protected. Only to contradict you, which I did.
Moving along to Rowan, which you quoted from quite a bit, your problem is this: you didn't pay close attention to it.
[A] sufficient measure of individual autonomy must survive to permit every householder to exercise control over unwanted mail.
[I]t seems to us that a mailer's right to communicate must stop at the mailbox of an unreceptive addressee.
The court has traditionally respected the right of a householder to bar, by order or notice, solicitors, hawkers, and peddlers from his property.... In this case the mailer's right to communicate is circumscribed only by an affirmative act of the addressee giving notice that he wishes no further mailings from that mailer.
Which is, frankly, the point I've been making again, and again, and again.
That unsolicited commercial mail can lawfully be sent to you up until the point where you say no. If you say no, either by a form of notice that the sender can reasonably be aware of, or by direct response to the sender, then I am FULLY in support of taking legal action against an obstinant sender.
Fail to take that action however, and I have little sympathy for you. Even despite the fact that I abhor all advertising in any medium personally, and would like nothing more than for spammers to hang up their modems.
Thus, where the author of the page you linked to says that "[i]t seems to me it is unreasonable to interpret the Supreme Court's clear language in Rowan v. Post Office to mean that recipients must accept advertising, at their expense, until such time as they have properly notified the sender to remove them from a list." I would disagree.
In the absence of specific individual objection to the communication, the government's interest in regulation is, at best, minimal. A ban on bulk spam isn't a time, place, or manner restriction. It isn't aimed at easing a burden on ISPs or users, because it is not aimed at email traffic generally -- it is content discriminatory. Unless you would ban ANY bulk email, in which case I must ask you some questions. How much at once is too much? And how does it help, if I can merely send a lot of smaller batches of mail instead?
One instance of the government butting in as opposed to an individual having given notice and being rebuffed is Bolger v. Youngs Drug Products, which in part held:
We have, of course, recognized the important interest in allowing addressees to give notice to a mailer that they wish no further mailings which, in their sole discretion, they believe to be erotically arousing or sexually provocative. But we have never held that the Government itself can shut off the flow of mailings to protect those recipients who might potentially be offended. The First Amendment "does not permit the government to prohibit speec
Well, Congress _can_ also establish a prior restraint. But it's REALLY hard to find a situation where it is legal to do so, and practical. The Pentagon Papers case discussed this.
I think that spam needs to be entirely truthful, insofar as advertising can be. If it says that they'll stop sending spam if you tell them to stop, that needs to be honored. If it isn't it should be actionable. I think that if you can establish a reasonable method of informing spammers en masse not to spam you (much like putting a prominent no soliciting sign by your door) then that needs to be honored, and if it is not is actionable.
Of course, no domestic law could prevent foreign spam no matter how draconian, so my proposals are just as ineffective -- if you think that they are -- as any others!
As for advertisements being free speech, I'm mindful of what the Supreme Court said in Central Hudson (447 US 557): The First Amendment... protects commercial speech from unwarranted governmental regulation.... [W]e have rejected the "highly paternalistic" view that government has complete power to suppress or regulate commercial speech.
Truthful spam is an exercise of free speech. Even in bulk.
Fraudulent advertising is not; harrassment is not; failure to respect requests not to solicit are not.
But when we're talking of a blanket ban on spam, i.e. a blanket ban on truthful, unsolicited but non-rejected advertising by email to any number of people... well, it's just not constitutional to ban it.
You have a case regarding the bulk nature of spam being objectionable -- cite it! I want to read it. I like to think I know about the First Amendment, having studied it quite a lot here in law school, and having discussed spam _specifically_ for days, but perhaps I'm missing something that you can point out. I don't mind being corrected, but I encourage you to put up or shut up.
Advertisements are a form of free speech. Certainly to most people they're less offensive than some forms of 'pure' political free speech like the Klan or Nazis engage in.
I'm willing to agree that advertisements need to be truthful, and may be impacted by regulation of the product being sold (e.g. some of the information included in drug ads), but there's no reason to believe that it's legal to ban advertising over email altogether.
HOWEVER -- Don't mistake this as saying that I like ads. I HATE ads. Not a day goes by that I don't wish I had some sort of magic device that could filter out ads from all of reality as I perceieved it.
My email address is for my use, not the spammers use.
Have you told them that?
I bet you haven't. And I bet you don't mind other people sending you unsolicited email; you just don't like unsolicited ads.
Having an email program is an invitation to get email. It can be limited or retracted, but that's your job to do. Check out the other posts in the thread.
When I am in my house and the same person comes in and starts his rant, I CANNOT go way, I am in MY house. In California, you can shoot the guy for trespassing.
AH! You fucked up.
The proper analogy would be that if someone came to your door and asked you to donate to Jews for Jesus or something, they'd be A-OK despite having gone on your property.
Until you ask them to leave. Or they're done. Or they're not allowed to enter your property at all, if you have given them reasonable notice by having a 'no solicitors' sign.
If you haven't told them in advance not to knock on your door, it is assumed that you don't care if they knock. You can't shoot them -- they have implicit permission to be there. (and in fact you usually cannot kill people to defend property anyway because it's excessive)
So in the realm of email, you have decided to get an email account. You haven't given anyone advance notice not to solicit you; notice that they can reasonably be aware of when they go to email you. You haven't told them to stop emailing you. And your time and property are not significantly impacted because it's so damn easy to trash spam in the first place; that is, your harm is insufficient to justify any relief.
If you don't want spam: Don't get an email address OR Inform people mailing you that you don't want solicitations OR Delete or filter it
No one is breaking in. YOU WANT PEOPLE TO SEND YOU EMAIL. YOU'RE INVITING THEM IN. So don't get all pissy when people you have implicitly invited actually _do so_. Especially when it is the work of a moment to get rid of them, and you can take legal action (which definately does not include shooting people) against them.
It is pretty likely that you wanted an email account that anyone could potentially send email to without prior authorization. Much in the way that anyone who dials your phone number can call you. Or anyone who has your mailing address can send packages to you.
Unsolicited communication -- which is often beneficial -- is part and parcel of having these sorts of lines of communication. It's the Superchicken Rule at work. That is, you KNEW that these services were open to unsolicited communication when you got them. It's not a surprise that anyone who knows your email might send you mail.
If you don't want them to be, that's fine. But it is incumbent upon YOU to deal with that, since having an account that only receives solicted mail is an oddity; much like a home phone line that only dials out, or accepts calls from a few hand-picked numbers.
The problem with your argument is that you have effectively consented to receive spam, because you are absolutely not discriminating as to what sort of content can be sent to you and which you are willing to receive.
If you don't want people sending you spam, either undertake to have a mail server that refuses to accept spam sent to it, or refuse to accept any email without your actual consent to recieve it.
You've set up a mailbox that anyone can send mail to. It's absurd for you to be upset for people to take you up on your offer.
You're ALREADY willing to pay to receive unsolicited mail, or you wouldn't be getting spam!
Therefore the unsolicited aspect is irrelevant; you just don't like _ads_. Other unsolicited content doesn't bother you at all.
The easiest way in the world not to get spam is not to have email. Just like the easiest way to not get telemarketing calls is to get rid of your phone, and the easiest way to not get junk mail is to not have a mailing address.
If you want the convenience of those things, there's going to be a downside. If you want to eliminate that downside and still enjoy the convenience, it's your problem, but it's not impossible to do.
Depends on if that's an effective notice -- we lack any sort of standardized thing, is the problem. The no-solicitations notice is really going to need to be in the mail system instead.
After all, do you know that spammers got your address there -- web stores are known to sell them. If you've used it posting on Usenet. Or even if someone gave it to them. (maybe inadvertantly, e.g. via email viruses)
Still, if you've given notice, and assuming it's good notice, and assuming that your email is your property (as opposed to your ISPs), try suing them for trespass to chattels if you can get jurisdiction.
I'm NOT in favor of spam, but I'm unwilling to forget about the 1st Amendment. If I have to give up the latter to get rid of spam, I'd rather just accept the spam as an annoying side effect of freedom, much like the Skokie Nazis.
As for whether you don't like the fact that it might, and I emphasize might, cost you money, then I suggest that you only allow in emails that you want. After all, you're the idiot that has an email address open to the world, open to strangers. Are you so stupid that you didn't expect that people you didn't know might send you mail?
No, you don't like spammers because of their MESSAGE -- not because it is merely unsolicited. If you only wanted solicited mail, you'd whitelist.
Discrimination based on one's message is just the kind of thing that the 1st A. is intended to combat government regulation of. You can throw out the spam, or refuse to accept it (just as you can refuse to accept postage due mail), but you're too damn lazy to do so.
However, if you've made resources available to them, then they can be used. If you don't want spam, then why did you get an email address that just anyone can send email to without being specifically authorized?
It's like door-to-door solicitation. If you don't want people on your property knocking on your door in a reasonable manner to sell you things, it's _your_ problem to put a sign up so that people won't try. Otherwise you're presumed to have made some resources available to others to use in soliciting you -- it's part of living in a free society.
Honestly, if you want to regulate spam you have a much better chance of doing so by mandating that it not be false advertising, viz. that the source isn't obscured and that if it has an 'unsubscribe' sort of option that it actually work.
But if Wake did not have an agent registered w/ the LOC for receiving notices AND a policy in place for users to see regarding offenders, it doesn't matter.
Assuming that Wake is fully compliant with the Safe Harbor which I doubt (especially after having seen the Google cache of Wake) THEN and only then could Wake say that the lawsuit was inappropriate because they had not been given a proper takedown notice.
Well, you're just a defendant when you're talking about a court case. And in fact in criminal trials, you're a defendant there too, but instead of a plaintiff bringing the case against you, the prosecutor does.
After the case is over, a defendant who was liable for the violation of civil law, AFAIK doesn't have a generic label applied to them.
If it was a tort, they're a tortfeasor. If it was a patent/copyright/trademark case, they're an infringer. If it was a contract case, they're the breaching party.
Competent lawyers certain can in good faith file pleadings that are wrong. Good faith requires them to make a reasonable investigation, but it is after all entirely possible that, prior to formal discovery, an answer, etc. that misinformation will still creep in or honest mistakes will be made.
Not every person who files a complaint that can be dismissed for various reasons (e.g. 12(b)(6), 56, etc.) is deserving of sanctions.
If lawyers always filed perfect complaints what the hell would we need the trial for?
As for the second part, that decision is appropriate for the state's supreme court and bar to make -- not individual lawyers. A mere lawyer's opinion has no real value for that.
Well, remember that this discussion was in the context of trying to get into the DMCA safe harbor in 17 USC 512(d).
So your point on voluntary takedowns is well noted, and no one wants that. However, takedowns requested as per the DMCA do need to be complied with (unless a counter-takedown notice is given also as per the DMCA, which is a mechanism to limit abuses) in order to get the safe harbor.
Basically the relevant part of the law says that service providers (which can include any sort of online service here, not just ISPs as we'd normally think of them) aren't liable, IF they do not have actual knowledge of infringement, OR IF they don't have actual knowledge of infringement and also aren't aware of any facts or circumstances from which infringement is apparent (i.e. don't look for infringement and you won't be liable for it).
BUT IF they do gain actual knowledge, or aware of facts or circumstances from which infringement is apparent they must expeditiously remove access to that material.
OR IF they do receive a proper takedown notice, they have to expeditiously remove access to that material.
In sum then, if you have an indexing service, firstly, comply with all of the DMCA -- which Wake apparently did not do, e.g. by not registering a takedown agent.
Secondly, don't ever look for infringements.
Thirdly, if you do find infringements regardless (and you may arguably have a lot of leeway) or get proper takedown notices -- take down the infringing material. (But put it back up if there's a proper counter-takedown notice)
These are things you need to do to keep your butt out of court. Though don't rely on this summation; go consult a lawyer licensed to practice in your jurisdiction.
Anyway, I think we're all basically on the same page here.
I imagine that you're arguing that 512(i)(1)(A) only applies to service providers, and wake being a search engine and not a traditional sort of ISP, they're exempt. Of course, you did not actually say why you thought that 512(i)(1)(A) applies to Princeton even with regards to things that students do on the Princeton network, so if you'd like to clarify, I'd appreciate it.
At any rate, check out 512(k).
(k) Definitions. - (1) Service provider. - (A) As used in subsection (a), the term ''service provider'' means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received. (B) As used in this section, other than subsection (a), the term ''service provider'' means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).
Wake is believed to fall within the 512(d) exception. Therefore we use the definition of a service provider in 512(k)(1)(B), which includes "online services." A search engine sounds like an online service. It clearly is not a synonym for "network access" because if it were, it would render that phrase in the statute redundant, and ordinary rules of statutory construction tell us that nothing's redundant.
So I still don't think that Princeton having set forth rules means that Wake, unless it is a project of the university, and not an independent project of a student in his personal capacity, gets to claim those rules as its own.
And at any rate, Wake has to comply with 512(c)(2)-(3) as well. If it isn't complying with ALL of 512(d),(i), or (c)(2)-(3), it doesn't get the safe harbor.
As for ID3 tags respecting copyright, I actually doubt that they're a technical measure per 512(i)(2)(A) due to their development history. And I agree that it's largely meaningless presently. But there are more important aspects of compliance with section 512 to worry about.
Incidentally, I have corresponded with the author of the essay. He says that as far as he knows, Wake did not have its own agent for takedown notices, and doesn't know whether the University's own compliance with section 512 could be relied upon by Wake. He doesn't think that Wake was an official project.
He says he'll address the issue, so hopefully some more facts will be gathered. Peng will have to file an answer to the RIAA complaint soon, and it should allege whether he thinks he's in the safe harbor or not. That'll help move this discussion forwards, I expect.
Unfortunately, it's up in the air AFAIK whether the university was in fact designated as the agent for wake specifically, or could be.
The page says that _he_ ran the database, not Princeton. It doesn't sound as though it's a school project, or related to Princeton in any way other than happening to be there.
Princeton is likely immune -- they're _his_ ISP. That doesn't make him immune any more than my Mom is part of AOL/Time-Warner just because she uses AOL to check her mail.
More information would be nice, but AFAICT it appears that wake was the personal project of this student, and the student therefore needed his own, personal takedown policy notices, registered agent, etc.
Wake is NOT, REPEAT NOT protected by the DMCA based on the information in the essay.
The author didn't read the entire thing. Sure 17 USC 512(d) appears to offer protection -- but you don't get it unless you ALSO comply with 17 USC 512(c)(2), (c)(3), and (i). And I'm seriously doubting that those requirements have been met.
Here's the lowdown:
(i) Conditions for Eligibility. - (1) Accommodation of technology. - The limitations on liability established by this section shall apply to a service provider only if the service provider - (A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider's system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers; and (B) accommodates and does not interfere with standard technical measures. (2) Definition. - As used in this subsection, the term ''standard technical measures'' means technical measures that are used by copyright owners to identify or protect copyrighted works and - (A) have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process; (B) are available to any person on reasonable and nondiscriminatory terms; and (C) do not impose substantial costs on service providers or substantial burdens on their systems or networks.
Unless the student being sued can show that he complied with this, he does NOT get the DMCA safe harbor.
Additionally, it is claimed that he might fall under the portion of the safe harbor per 17 USC 512(d). Well, that's bad too. Check this out.
512(d)(3) says: upon notification of claimed infringement as described in subsection (c)(3)
That refers us to 512(c)(3) regarding notification, which in part says: 3) Elements of notification. - (A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider
Well, what is a designated agent of a service provider? We only find out in 512(c)(2). It's not good: (2) Designated agent. - The limitations on liability stablished in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information: (A) the name, address, phone number, and electronic mail address of the agent. (B) other contact information which the Register of Copyrights may deem appropriate. The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, in both electronic and hard copy formats, and may require payment of a fee by service providers to cover the costs of maintaining the directory.
So, unless this guy has provided to the USCO contact information, etc. for an agent to receive takedown notices, he again DOES NOT GET THE DMCA SAFE HARBOR.
Without it, he's got a much harder case ahead of him. I don't envy him.
It seems like that would be very expensive -- there's a toll to use those things, and at any rate, the gates don't seem to output a lot of light except when there's actually a ship passing through the endpoint.
I figured it was either a mistake, or it would be handled by putting big mirrors into orbit to focus additional light into the proper parts of the planet. Such mirrors a something of a hassle, but a really huge, incredibly thin layer of foil will work fine. It's not as though structures in microgravity need a lot of strength to remain intact, barring accidents.
Well, you have to bear in mind that the people at Apple extolling user interface were already familiar with PARC. Chiefly this would be Jef Raskin, who had been working with UI issues since the 60's. However, Jobs, who didn't get it, was a bigwig at Apple and was threatening the future of the Macintosh project and their exporting of UI features into the Lisa project. So the PARC tour Jobs took was more to get him to support what other people were doing, or at least stop interfering. People doing real work didn't pick up a great deal from it.
For a good Apple history, I suggest "Infinite Loop" by Michael Malone.
Slashdot Mirror
FYI, RIAA was founded in 1952. Radio became popular in the 20's and 30's. Though a lot of radio at that time was not music. It was used for shows, the way that TV is now. In fact a fair number of TV shows started out as radio programs.
LOL.
When discussing compulsory licenses in the realm of copyright, it isn't compulsory against you, the individual. It's compulsory against copyright holders.
That is, they HAVE to let you cover a song if you pay the fee set by law. Even if they hate you, or would prefer to charge a million, billion dollars. But you certainly don't have to ever take advantage of that, in which case you pay nothing and don't cover the song.
That said, this proposal is not much like current compulsory licenses, so I share your apprehension.
To address your points:
No, I do not believe that spammers are generally truthful. But some are. And if false spam is cracked down upon then at least we'll only have to contend with truthful spam, which is better than the current state of affairs.
And while I agree that there is cost shifting, I do not believe that it is significant in the aggregate, or significant as with regards to any individual user. Nor am I convinced that ISPs are suffering in any particular way, or that it would be wise for legal relief to be available since ISPs can solve this problem themselves to a large extent.
I do continue to believe that a blanket ban on spam would be unconstitutional, but partial bans (e.g. bans on false spam) would not be. And I don't think the TCPA case is applicable, in part because costs involved with faxes are quite different from costs involved with email.
I have not to my knowledge equated all bulk email with spam, though feel free to point out if I have, and at very least I do not mean to. Opt-in is perfectly unobjectionable to me provided that you can opt-out later. The government absolutely has no business preventing communications that people want to send and other people want to receive, though in the commercial context some interference is still possible (again requiring truthfulness).
I absolutely claim that spam is not a manner of communication. Furthermore time/place/manner restrictions can never constitutionally be so onerous as to hinder all communication. So, for example, a law prohibiting telemarketing during certain times of day is ok; a law prohibiting it altogether is not. I have yet to see a t/p/m restriction applied to spam that makes sense. You haven't brought this issue up until now anyway, so I really wonder where you get off making claims as to what I think.
I do think that spam bans are in part aimed at easing burdens on ISPs and users, though more motivated due to a dislike of advertising, typically false advertising, BUT I feel such burdens are so minimal that they don't serve to justify the ban.
And I do think that banning unsolicited bulk ADVERTISING is content discriminatory, to use ALL of my words. Bulk email without regards to content is not, but that's not what I was discussing. Bulk email (such as a fiction mailing list, or a legal discussion list that I am on) certainly isn't necessarily spam -- and this is a discussion about spam.
And I don't think that opt-out currently works, but I do think that if you do opt-out and it isn't respected, that then you have a GREAT grounds for a suit against the spammer, one which I wholly endorse. What I think is that we needs laws to ensure that opt-out _does_ work, but then we should leave the decision as to whether or not to opt out in the hands of users (and to a lesser extent ISPs, though I'd discourage them from making such decisions unilaterally; I prefer ISPs to fit in the common carrier mold).
So, in sum, I think you're simply too stupid or obstinant to actually read what I've been writing. Reality has no meaning to you -- you're seeing what you want to see, and to Hell with those who dare to disagree with you.
I have no problems restating something if I haven't been clear, but you're simply ascribing positions to me that are not based in reality. Still, I'm always open to continue the discussion -- the ACTUAL discussion, and not the one in your head -- whenever you are.
Spammers have no history of being truthful.
... In this case the mailer's right to communicate is circumscribed only by an affirmative act of the addressee giving notice that he wishes no further mailings from that mailer.
I disagree. There are surely some truthful spammers. At any rate, I never said that I believe that the First Amendment protected false advertising, so it's pretty clear that I'm ONLY saying that truthful spammers are acceptable.
You claim that spam is free speech, and laws against it would be thrown out due to the first amendment.
No. I only say that _some_ spam is protected speech, AND that the degree of protection it enjoys isn't enough to prevent some regulation (again with the truthful advertising) but is enough to prevent, for example, a ban.
Now, regarding Central Hudson, you didn't understand the purpose of the quote. It was a direct response to your statement that you posted quotes from opinions that "directly disagree" with my statement that "[a]dvertisements are a form of free speech."
The quote from Central Hudson explicitly says that the First Amendment protects commercial speech.
Thus, you were wrong.
I did NOT however quote Central Hudson to indicate that spam, in all its forms was protected. Only to contradict you, which I did.
Moving along to Rowan, which you quoted from quite a bit, your problem is this: you didn't pay close attention to it.
[A] sufficient measure of individual autonomy must survive to permit every householder to exercise control over unwanted mail.
[I]t seems to us that a mailer's right to communicate must stop at the mailbox of an unreceptive addressee.
The court has traditionally respected the right of a householder to bar, by order or notice, solicitors, hawkers, and peddlers from his property.
Which is, frankly, the point I've been making again, and again, and again.
That unsolicited commercial mail can lawfully be sent to you up until the point where you say no. If you say no, either by a form of notice that the sender can reasonably be aware of, or by direct response to the sender, then I am FULLY in support of taking legal action against an obstinant sender.
Fail to take that action however, and I have little sympathy for you. Even despite the fact that I abhor all advertising in any medium personally, and would like nothing more than for spammers to hang up their modems.
Thus, where the author of the page you linked to says that "[i]t seems to me it is unreasonable to interpret the Supreme Court's clear language in Rowan v. Post Office to mean that recipients must accept advertising, at their expense, until such time as they have properly notified the sender to remove them from a list." I would disagree.
In the absence of specific individual objection to the communication, the government's interest in regulation is, at best, minimal. A ban on bulk spam isn't a time, place, or manner restriction. It isn't aimed at easing a burden on ISPs or users, because it is not aimed at email traffic generally -- it is content discriminatory. Unless you would ban ANY bulk email, in which case I must ask you some questions. How much at once is too much? And how does it help, if I can merely send a lot of smaller batches of mail instead?
One instance of the government butting in as opposed to an individual having given notice and being rebuffed is Bolger v. Youngs Drug Products, which in part held:
We have, of course, recognized the important interest in allowing addressees to give notice to a mailer that they wish no further mailings which, in their sole discretion, they believe to be erotically arousing or sexually provocative. But we have never held that the Government itself can shut off the flow of mailings to protect those recipients who might potentially be offended. The First Amendment "does not permit the government to prohibit speec
Well, Congress _can_ also establish a prior restraint. But it's REALLY hard to find a situation where it is legal to do so, and practical. The Pentagon Papers case discussed this.
You forgot to mention that people also enjoy watching Divx movies of proteins being folded.
Centuries, you mean. That sense of the word pirate dates back to 1668 -- which was decades _before_ copyright law, incidentally.
You've misunderstood.
... protects commercial speech from unwarranted governmental regulation. ... [W]e have rejected the "highly paternalistic" view that government has complete power to suppress or regulate commercial speech.
I think that spam needs to be entirely truthful, insofar as advertising can be. If it says that they'll stop sending spam if you tell them to stop, that needs to be honored. If it isn't it should be actionable. I think that if you can establish a reasonable method of informing spammers en masse not to spam you (much like putting a prominent no soliciting sign by your door) then that needs to be honored, and if it is not is actionable.
Of course, no domestic law could prevent foreign spam no matter how draconian, so my proposals are just as ineffective -- if you think that they are -- as any others!
As for advertisements being free speech, I'm mindful of what the Supreme Court said in Central Hudson (447 US 557): The First Amendment
Truthful spam is an exercise of free speech. Even in bulk.
Fraudulent advertising is not; harrassment is not; failure to respect requests not to solicit are not.
But when we're talking of a blanket ban on spam, i.e. a blanket ban on truthful, unsolicited but non-rejected advertising by email to any number of people... well, it's just not constitutional to ban it.
You have a case regarding the bulk nature of spam being objectionable -- cite it! I want to read it. I like to think I know about the First Amendment, having studied it quite a lot here in law school, and having discussed spam _specifically_ for days, but perhaps I'm missing something that you can point out. I don't mind being corrected, but I encourage you to put up or shut up.
Advertisements are a form of free speech. Certainly to most people they're less offensive than some forms of 'pure' political free speech like the Klan or Nazis engage in.
I'm willing to agree that advertisements need to be truthful, and may be impacted by regulation of the product being sold (e.g. some of the information included in drug ads), but there's no reason to believe that it's legal to ban advertising over email altogether.
HOWEVER -- Don't mistake this as saying that I like ads. I HATE ads. Not a day goes by that I don't wish I had some sort of magic device that could filter out ads from all of reality as I perceieved it.
My email address is for my use, not the spammers use.
Have you told them that?
I bet you haven't. And I bet you don't mind other people sending you unsolicited email; you just don't like unsolicited ads.
Having an email program is an invitation to get email. It can be limited or retracted, but that's your job to do. Check out the other posts in the thread.
Well, assuming that that's reasonable notice, and it certainly sounds like it, I wish you good luck suing over it.
(just as with any law, it's only worthwhile insofar as its enforced, or at least deters)
When I am in my house and the same person comes in and starts his rant, I CANNOT go way, I am in MY house. In California, you can shoot the guy for trespassing.
AH! You fucked up.
The proper analogy would be that if someone came to your door and asked you to donate to Jews for Jesus or something, they'd be A-OK despite having gone on your property.
Until you ask them to leave. Or they're done. Or they're not allowed to enter your property at all, if you have given them reasonable notice by having a 'no solicitors' sign.
If you haven't told them in advance not to knock on your door, it is assumed that you don't care if they knock. You can't shoot them -- they have implicit permission to be there. (and in fact you usually cannot kill people to defend property anyway because it's excessive)
So in the realm of email, you have decided to get an email account. You haven't given anyone advance notice not to solicit you; notice that they can reasonably be aware of when they go to email you. You haven't told them to stop emailing you. And your time and property are not significantly impacted because it's so damn easy to trash spam in the first place; that is, your harm is insufficient to justify any relief.
If you don't want spam:
Don't get an email address
OR
Inform people mailing you that you don't want solicitations
OR
Delete or filter it
No one is breaking in. YOU WANT PEOPLE TO SEND YOU EMAIL. YOU'RE INVITING THEM IN. So don't get all pissy when people you have implicitly invited actually _do so_. Especially when it is the work of a moment to get rid of them, and you can take legal action (which definately does not include shooting people) against them.
Fucking moron.
Not at all.
It is pretty likely that you wanted an email account that anyone could potentially send email to without prior authorization. Much in the way that anyone who dials your phone number can call you. Or anyone who has your mailing address can send packages to you.
Unsolicited communication -- which is often beneficial -- is part and parcel of having these sorts of lines of communication. It's the Superchicken Rule at work. That is, you KNEW that these services were open to unsolicited communication when you got them. It's not a surprise that anyone who knows your email might send you mail.
If you don't want them to be, that's fine. But it is incumbent upon YOU to deal with that, since having an account that only receives solicted mail is an oddity; much like a home phone line that only dials out, or accepts calls from a few hand-picked numbers.
The problem with your argument is that you have effectively consented to receive spam, because you are absolutely not discriminating as to what sort of content can be sent to you and which you are willing to receive.
If you don't want people sending you spam, either undertake to have a mail server that refuses to accept spam sent to it, or refuse to accept any email without your actual consent to recieve it.
You've set up a mailbox that anyone can send mail to. It's absurd for you to be upset for people to take you up on your offer.
You're ALREADY willing to pay to receive unsolicited mail, or you wouldn't be getting spam!
Therefore the unsolicited aspect is irrelevant; you just don't like _ads_. Other unsolicited content doesn't bother you at all.
The easiest way in the world not to get spam is not to have email. Just like the easiest way to not get telemarketing calls is to get rid of your phone, and the easiest way to not get junk mail is to not have a mailing address.
If you want the convenience of those things, there's going to be a downside. If you want to eliminate that downside and still enjoy the convenience, it's your problem, but it's not impossible to do.
Depends on if that's an effective notice -- we lack any sort of standardized thing, is the problem. The no-solicitations notice is really going to need to be in the mail system instead.
After all, do you know that spammers got your address there -- web stores are known to sell them. If you've used it posting on Usenet. Or even if someone gave it to them. (maybe inadvertantly, e.g. via email viruses)
Still, if you've given notice, and assuming it's good notice, and assuming that your email is your property (as opposed to your ISPs), try suing them for trespass to chattels if you can get jurisdiction.
I'm NOT in favor of spam, but I'm unwilling to forget about the 1st Amendment. If I have to give up the latter to get rid of spam, I'd rather just accept the spam as an annoying side effect of freedom, much like the Skokie Nazis.
Spam _is_ free speech.
As for whether you don't like the fact that it might, and I emphasize might, cost you money, then I suggest that you only allow in emails that you want. After all, you're the idiot that has an email address open to the world, open to strangers. Are you so stupid that you didn't expect that people you didn't know might send you mail?
No, you don't like spammers because of their MESSAGE -- not because it is merely unsolicited. If you only wanted solicited mail, you'd whitelist.
Discrimination based on one's message is just the kind of thing that the 1st A. is intended to combat government regulation of. You can throw out the spam, or refuse to accept it (just as you can refuse to accept postage due mail), but you're too damn lazy to do so.
However, if you've made resources available to them, then they can be used. If you don't want spam, then why did you get an email address that just anyone can send email to without being specifically authorized?
It's like door-to-door solicitation. If you don't want people on your property knocking on your door in a reasonable manner to sell you things, it's _your_ problem to put a sign up so that people won't try. Otherwise you're presumed to have made some resources available to others to use in soliciting you -- it's part of living in a free society.
Honestly, if you want to regulate spam you have a much better chance of doing so by mandating that it not be false advertising, viz. that the source isn't obscured and that if it has an 'unsubscribe' sort of option that it actually work.
They skipped straight to the lawsuit part AFAIK.
But if Wake did not have an agent registered w/ the LOC for receiving notices AND a policy in place for users to see regarding offenders, it doesn't matter.
Assuming that Wake is fully compliant with the Safe Harbor which I doubt (especially after having seen the Google cache of Wake) THEN and only then could Wake say that the lawsuit was inappropriate because they had not been given a proper takedown notice.
Well, you're just a defendant when you're talking about a court case. And in fact in criminal trials, you're a defendant there too, but instead of a plaintiff bringing the case against you, the prosecutor does.
;)
After the case is over, a defendant who was liable for the violation of civil law, AFAIK doesn't have a generic label applied to them.
If it was a tort, they're a tortfeasor. If it was a patent/copyright/trademark case, they're an infringer. If it was a contract case, they're the breaching party.
I like the 'civilal' thing though.
Competent lawyers certain can in good faith file pleadings that are wrong. Good faith requires them to make a reasonable investigation, but it is after all entirely possible that, prior to formal discovery, an answer, etc. that misinformation will still creep in or honest mistakes will be made.
Not every person who files a complaint that can be dismissed for various reasons (e.g. 12(b)(6), 56, etc.) is deserving of sanctions.
If lawyers always filed perfect complaints what the hell would we need the trial for?
As for the second part, that decision is appropriate for the state's supreme court and bar to make -- not individual lawyers. A mere lawyer's opinion has no real value for that.
You're being way too harsh.
Well, remember that this discussion was in the context of trying to get into the DMCA safe harbor in 17 USC 512(d).
So your point on voluntary takedowns is well noted, and no one wants that. However, takedowns requested as per the DMCA do need to be complied with (unless a counter-takedown notice is given also as per the DMCA, which is a mechanism to limit abuses) in order to get the safe harbor.
Basically the relevant part of the law says that service providers (which can include any sort of online service here, not just ISPs as we'd normally think of them) aren't liable, IF they do not have actual knowledge of infringement, OR IF they don't have actual knowledge of infringement and also aren't aware of any facts or circumstances from which infringement is apparent (i.e. don't look for infringement and you won't be liable for it).
BUT IF they do gain actual knowledge, or aware of facts or circumstances from which infringement is apparent they must expeditiously remove access to that material.
OR IF they do receive a proper takedown notice, they have to expeditiously remove access to that material.
In sum then, if you have an indexing service, firstly, comply with all of the DMCA -- which Wake apparently did not do, e.g. by not registering a takedown agent.
Secondly, don't ever look for infringements.
Thirdly, if you do find infringements regardless (and you may arguably have a lot of leeway) or get proper takedown notices -- take down the infringing material. (But put it back up if there's a proper counter-takedown notice)
These are things you need to do to keep your butt out of court. Though don't rely on this summation; go consult a lawyer licensed to practice in your jurisdiction.
Anyway, I think we're all basically on the same page here.
No, 512(i)(1)(A) applies to both, seperately.
I imagine that you're arguing that 512(i)(1)(A) only applies to service providers, and wake being a search engine and not a traditional sort of ISP, they're exempt. Of course, you did not actually say why you thought that 512(i)(1)(A) applies to Princeton even with regards to things that students do on the Princeton network, so if you'd like to clarify, I'd appreciate it.
At any rate, check out 512(k).
(k) Definitions. -
(1) Service provider. -
(A) As used in subsection (a), the term ''service provider'' means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received.
(B) As used in this section, other than subsection (a), the term ''service provider'' means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).
Wake is believed to fall within the 512(d) exception. Therefore we use the definition of a service provider in 512(k)(1)(B), which includes "online services." A search engine sounds like an online service. It clearly is not a synonym for "network access" because if it were, it would render that phrase in the statute redundant, and ordinary rules of statutory construction tell us that nothing's redundant.
So I still don't think that Princeton having set forth rules means that Wake, unless it is a project of the university, and not an independent project of a student in his personal capacity, gets to claim those rules as its own.
And at any rate, Wake has to comply with 512(c)(2)-(3) as well. If it isn't complying with ALL of 512(d),(i), or (c)(2)-(3), it doesn't get the safe harbor.
As for ID3 tags respecting copyright, I actually doubt that they're a technical measure per 512(i)(2)(A) due to their development history. And I agree that it's largely meaningless presently. But there are more important aspects of compliance with section 512 to worry about.
Incidentally, I have corresponded with the author of the essay. He says that as far as he knows, Wake did not have its own agent for takedown notices, and doesn't know whether the University's own compliance with section 512 could be relied upon by Wake. He doesn't think that Wake was an official project.
He says he'll address the issue, so hopefully some more facts will be gathered. Peng will have to file an answer to the RIAA complaint soon, and it should allege whether he thinks he's in the safe harbor or not. That'll help move this discussion forwards, I expect.
Unfortunately, it's up in the air AFAIK whether the university was in fact designated as the agent for wake specifically, or could be.
The page says that _he_ ran the database, not Princeton. It doesn't sound as though it's a school project, or related to Princeton in any way other than happening to be there.
Princeton is likely immune -- they're _his_ ISP. That doesn't make him immune any more than my Mom is part of AOL/Time-Warner just because she uses AOL to check her mail.
More information would be nice, but AFAICT it appears that wake was the personal project of this student, and the student therefore needed his own, personal takedown policy notices, registered agent, etc.
Wake is NOT, REPEAT NOT protected by the DMCA based on the information in the essay.
The author didn't read the entire thing. Sure 17 USC 512(d) appears to offer protection -- but you don't get it unless you ALSO comply with 17 USC 512(c)(2), (c)(3), and (i). And I'm seriously doubting that those requirements have been met.
Here's the lowdown:
(i) Conditions for Eligibility. -
(1) Accommodation of technology. -
The limitations on liability established by this section shall apply to a service provider only if the service provider -
(A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider's system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers; and
(B) accommodates and does not interfere with standard technical measures.
(2) Definition. -
As used in this subsection, the term ''standard technical measures'' means technical measures that are used by copyright owners to identify or protect copyrighted works and -
(A) have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process;
(B) are available to any person on reasonable and nondiscriminatory terms; and
(C) do not impose substantial costs on service providers or substantial burdens on their systems or networks.
Unless the student being sued can show that he complied with this, he does NOT get the DMCA safe harbor.
Additionally, it is claimed that he might fall under the portion of the safe harbor per 17 USC 512(d). Well, that's bad too. Check this out.
512(d)(3) says:
upon notification of claimed infringement as described in subsection (c)(3)
That refers us to 512(c)(3) regarding notification, which in part says:
3) Elements of notification. -
(A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider
Well, what is a designated agent of a service provider? We only find out in 512(c)(2). It's not good:
(2) Designated agent. -
The limitations on liability stablished in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information:
(A) the name, address, phone number, and electronic mail address of the agent.
(B) other contact information which the Register of Copyrights may deem appropriate.
The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, in both electronic and hard copy formats, and may require payment of a fee by service providers to cover the costs of maintaining the directory.
So, unless this guy has provided to the USCO contact information, etc. for an agent to receive takedown notices, he again DOES NOT GET THE DMCA SAFE HARBOR.
Without it, he's got a much harder case ahead of him. I don't envy him.
It seems like that would be very expensive -- there's a toll to use those things, and at any rate, the gates don't seem to output a lot of light except when there's actually a ship passing through the endpoint.
I figured it was either a mistake, or it would be handled by putting big mirrors into orbit to focus additional light into the proper parts of the planet. Such mirrors a something of a hassle, but a really huge, incredibly thin layer of foil will work fine. It's not as though structures in microgravity need a lot of strength to remain intact, barring accidents.
Well, you have to bear in mind that the people at Apple extolling user interface were already familiar with PARC. Chiefly this would be Jef Raskin, who had been working with UI issues since the 60's. However, Jobs, who didn't get it, was a bigwig at Apple and was threatening the future of the Macintosh project and their exporting of UI features into the Lisa project. So the PARC tour Jobs took was more to get him to support what other people were doing, or at least stop interfering. People doing real work didn't pick up a great deal from it.
For a good Apple history, I suggest "Infinite Loop" by Michael Malone.