Well, Nader is largely concerned with product liability, IIRC. I've got to admit that I'm torn on the subject. I think that it's easily abusable by both sides (car companies can claim that cars that are known to explode randomly are safe, while cities can sue firearms manufacturers for making tools which can be used illegally)
If anyone has a reasonably consistent way of dealing with this, I'd like very much to hear it. I've been thinking about the issue for quite a while now and I can't see a good solution.
However, I don't think that liability necessarily has a hell of a lot to do with copyright. They're frequently attached in licenses, but that's more to force you to agree to one unrelated thing by preventing you from really using what you bought. I guess MS is monopolistic even in their licensing agreements;)
Fortunately you have to apply to the US Patent and Trademark Office for a trademark, and it's a bit more limited than you'd imagine for what constitutes dilution. (e.g. Linux OS and Linux Detergent are sufficiently different that they don't dillute each other)
But you said: There is no first sale doctrine with software "purchases" because it's almost always not a sale, it's a license. A license is a right to use with ownership retained by the vendor. You have no first sale rights in any software you "buy."
No one has been saying that when you buy a copy of Windows that you're buying the copyright. As we already discussed to death, a copyright, a copyrighted work, and a medium containing a copyrighted work are three different things.
An example for anyone who's been following this: Neal Stephenson is rumored to burn any copy of his first novel "The Big U" that he comes across. Assuming that he didn't transfer the copyright to a publisher, Neal owns the copyright. Neal remembers the story and so he has a copy of that too, in his memory. There's already a lengthy post on how come he doesn't own the story. Copyrights are not ownership.
Anyway, one day at a garage sale Neal finds a copy of the book and buys it. Now Neal owns the copyright and a book and has but doesn't own the story. He burns the book, but still has the copyright and the story.
Years later, he sells the copyright to a publisher in exchange for a copy of the book. Now he has the book and the story and no copyright (like the rest of us). This is how copyright, copyrighted content and the content carrier are all different. We now return you to the argument.
When you buy a copy of Windows at the store, first sale either occurs then (if it's the MS store or if the store is selling it on behalf of MS) or has already occured (if the store bought it from MS or from a reseller.
You might argue that MS agrees that anyone who purchases Windows from MS is prohibited from reselling the software unless the person who would purchase it agrees to the license beforehand, but I've never seen anything that indicates that this occurs, nor would I think it applies all that much given that agreement to that is not required when you're at the register.
Do you seriously think that MS would win a case in which it not only accused computer stores of breech of contract, but of users and further resellers in traficking in stolen goods/copyright infringement? I live a mile away from MS - I think I'll see if they have a company store that operates like that (requiring that I agree before buying to preempt first sale) but I bet you $5 that it doesn't.
As always, I'm talking about Windows - the copyrighted content and the carrier. I have never said that MS sells the copyright to Windows, though it would make for a fun contest if they did.
When first sale occurs, as it does at some point prior to you walking out of the store with a copy of Windows MS has lost their ability to force you to agree to their license. You can use Windows in any way you wish - from burning the CD to opening the binaries as a raw image file in Photoshop and calling it art. Should you want to use it as a computer operating system you're within your rights to. And you can resell it too (normal copyright laws apply) because you own it. (Windows, not the copyright)
The trick is, when you attempt to install it on a computer the standard installer will not let you use Windows unless you agree to a license that restricts you from exercising all the great rights you get after first sale. IF you agree to MS's license (which pretty certainly means clickwrap not shrinkwrap) then you lose the ability to do anything that the license doesn't let you do. But this doesn't have to be the case.
What if you can somehow manage to pull off a technical miracle and install Windows through some other method? You have already bought your copy; first sale is a done deal and you're free to use Windows as an OS. You did not agree to the license, and never did anything in the installer otherwise. As I said a long time ago, this would be really really hard to do. But it would still be perfectly legal and would not restrict you the way MS does. As long as first sale takes place without your being required to agree to a license as a condition of that sale, you're safe.
As for shrinkwrap, I really really doubt, given that first sale occurs before the shrinkwrap is broken, that it would get upheld as binding in this situation. The CD is your property (and the information within it, though not the copyright upon it) and so is the sticker and the rest of the packaging. It violates first sale to say that opening it would trigger a license.
UCITA changes this for the worse. However IIRC VA's UCITA is not in effect yet and MD's is not the same as the 'default' UCITA. Additionally UCITA can be struck down by the courts if it conflicts with fair use and I have no doubt that it will be struck down. However, looking at all the posts, I think I see where our disagreement begins. As far as I can tell, you're talking as though UCITA is fully in effect and being used. I'm not AFAIK currently effected by UCITA, nor do I think that it'll hold up when challenged (Fair use, first sale, etc. trumping any particular contradictory law 9 times out of 10) so I'm still operating under the normal conditions.
Answering the very specific question you ask in your most recent post, there has been a case (which is well known when discussing first sale, but I can't remember the name at the moment) in which the publisher of a book tried to claim that the book could not be resold unless the price were no lower than $1. This was found unconstitutional but is clearly an attempt by the copyright holder to impose restrictions on how the owner of the book could resell it. It strikes me as the same as the psuedo-license agreements that are shrinkwrap.
I'm willing to consider clickwrap more or less legally binding (provided that it takes more than ANY use to trigger it - some deliberate action intended to trigger the license is required IMHO) though the licensee and the terms of the license are always issues that have to be considered wrt binding anyway.
Well perhaps we don't have a constitutional basis for copyrights or patents then;)
Seriously, the copyright clause gives the Congress the power to grant limited exclusive monopolies to authors and inventors for their works.
The first amendment prevents the Congress from making any law that abridges the freedom of speech or the press.
How this is reconciled in practice is that the first amendment grants freedom of speech (which naturally includes the ability to copy other's works) but that that freedom is ideally abridged only a little bit to permit the copyright clause to come into effect as well as to prevent certain crimes like incitement to murder.
Fundementally the copyright clause is an infringement on free speech, but even the very early US had copyright laws while the framers were alive so I don't think that anyone has had an issue with the existance of the infringement.
The scope of the infringement on the other hand is of great concern and has come up time and time again.
I think that would fold into the warranty. No Warranty implies that it's not guaranteed to work for anything, ever. Would that not include nuclear reactors or life support systems?
Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.
That's absolutely right. The copyright is a right which is the property of the author. You own the copyright. NOT, you own the work. No one can take the copyright from you, and the copyright itself satisfies the requirements for ownership. The actual copyrighted work does not. There is a very important difference.
Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.
Again, I agree. The copyright is not transferred along with the work or a media which contains the work. I never said it did. Not once have I disputed the ownership of the COPYRIGHT, I have only disputed that the copyright does not confer ownership of the WORK.
A copyright and a work are two seperate things you know. All the quotes you put up there repeat this; "owner of the copyright." They never say "owner of the work" Do you disagree? Do you claim that the quotes you yourself quoted say something other than what they plainly do?
In order to own something you must satisfy three conditions: (reciting from memory here) 1) You must be able to use the thing as you see fit 2) You must be able to control when and how others may use it 3) You must be able to dispose of it as you see fit (e.g. destroy, sell, give away)
Now then. Let us say that I have a brick. Do I own it? 1. Can I use the brick? Yes. I can build stuff with it, or throw it or stand on it, etc. 2.Can I control how others can use the brick? Yes. (although this is sketchy due to the nature of property as an artificial concept anyway) 3. Can I dispose of the brick? Yes. I can give the brick to you. Or throw it away. etc.
Thus I own the brick.
Now let us consider the BOOK Cryptonomicon, but not the STORY which the book (a tangible thing) contains.
1. Can I use it? Yes. I can read it, light a fire with it, wrap fish with it, store it in the privy for both reading material and toilet paper, kindle fires with it, etc. 2. Can I control how others use it? Yes, just as much as any other piece of property can be controlled. 3. Can I dispose of it. Yes. I can burn it, sell it, etc.
I own the BOOK Cryptonomicon.
But now let us consider the STORY within the book. If anyone has ever owned it, it would be Neal. Let us see if he has ever been able to satisfy these requirements (it's a given that I don't)
1. Can Neal use it? Yes. He can also read the story, gain pleasure from it, rewrite parts of it, quote it, etc. 2. Can Neal control how others use it? No. If Neal permits someone else to use it at all, ever, he cannot take the information back. The 2nd person will remember the story and Neal is incapable of doing anything about it. (other than lobotomizing the 2nd person or something but I doubt this is acceptable) 3. Can Neal dispose of it? No. Again, unless he can force himself to forget about it altogether, he can only give people copies. Whenever anyone reads the story a copy of the story is made from the book (itself a copy of the original in Neal's brain) to the brain of new reader. The original is never transferred at all, although the medium on which some copies are contained may be transferrable.
Thus Neal does not own the STORY Cryptonomicon.
Nor does the publisher. Nor you or I. Due to the nature of reality, the human mind and information it is impossible to satisfy the requirements for ownership when it comes to information.
Now then, as for your continued misconception of copyrights, it has just been proven that information is unownable. Even as pure thought it still cannot satisfy the final requirement for ownership.
US Copyright law does not change this in the least. It does not confer ownership of information. It never has, the copyright clause in the Constitution forbids it twice (which is pretty good for what is IIRC a single sentence) and it would be impossible anyway.
What copyrights ARE is: An exclusive right (for a limited amount of time, the intent being to promote the useful arts and sciences) to the copying of information under some, but not all circumstances.
You can see why this gets shortened to copyright; it concerns (some) copying (sometimes). Copyright cannot be extended to use.
When you copyright some material, what is happening is that no one else is allowed to make an additional copy of it. You hold the 'copy right.' (I bet you wondered why they weren't called licenserights. However, there are no small number of limitations to that right.
The reason that there are limitations is because the justification for having copyrights and patents too (which are wholly artificial - we already proved that information is unownable) is that it will promote the arts and sciences. In order to promote the arts and sciences though, the copyright must exist for a limited time. If it's too long, there will be no advancement because the tools or knowledge require for the advancement are not freely usable.
Imagine if Einstein had had to pay the heirs of Newton in order to do research related to gravity. Einstein would have remained a patent clerk and physics would have stagnated. Information is most valuable when everyone can use it to generate more information.
Other forms of fair use exist because it would be harmful to society if they did not. Copyright exists to help society. If copyright does harm it, it is copyright, not society that must be corrected.
So when you buy a copy of Cryptonomicon, the rights that the copyright holder has are quite limited. The only thing that they can do with the information that you can't do is reproduce it in ways that are not considered fair use (such as making a copy and selling it).
There is no license involved, other than the financial transaction between you and the bookstore that consists of: Here is money for that book.
Copyright holders copyrights are protected by law, not license. Your rights are protected by law which is required to favor you over copyright holders.
Why is this so difficult to understand? Have you READ 17 USC? They're the actual copyright laws. (Although they can be found unconstitutional. Only the copyright clause of the constitution itself is necessarily constitutional, despite conflicting with the first amendment) I'm still going through them - they're long as hell and a hard read - but they're pretty damn clear on this issue. Copyrights aren't licenses.
Nope. You go to the store, you buy a box, it's yours. Same as with any other crunchy media with a chewy content center; Books are property which hold information; CDs are property which hold information; Videotapes are property which hold information... seeing a trend? Why is it that first sale is consistently upheld here? Perhaps because it's universal.
ANY time you buy media with content you get to use the content (assuming there is not already some illegality in the chain - stolen CDs, etc.)
When you go to the store and buy Quake 3, you buy a CD and the inherent right to use the stuff on the CD. Other than technical issues w/ installers and such, you do not have to agree to the license in order to use it.
For decades companies have been trying to dupe people into thinking that they can only buy licenses that the company can unilaterally alter or revoke w/o cause, but it just isn't true. Copyright law trumps your 'you only buy a license' idea.
Software is copyrightable material and as such is treated like any other copyrighted material. It's tragic when people give up their rights when they don't have to but that doesn't change things. If software doesn't have to play by the rules of copyright then why pray tell, should it get to be copyrighted at all. Copyright is a privelege, not a god-given right. (OTOH copyright's mortal enemy, free speech _is_ a god-given right)
This ends up meaning that MS could (if they didn't have their heads so far up their asses that they can see the contents of their stomachs) print on the Office CD something like:
MS Office(tm) (c)2000, Microsoft(tm) US Patents 1,234,567, 1,234,568 No warranty.
And that would be enough. God knows if I ever put out software or something that's going to be how I do it. Copyright law is restrictive enough already; probably too much so.
It blocks fair use which is stepping beyond the limitations of copyright. He's normally allowed to make copies under certain circumstances. The license doesn't appear to permit that, and Norton still has their copyright whether it's in the license or not; it does not need to be reaffirmed in the slightest.
But it forces you to transfer the license (instead of just throwing it in the trash) along with the CD. IANAL, but AFAIK you do not have to agree to the license in order to use the product. (technical issues aside) If you buy the box Xing has no legal power to force you to use it under the terms of the license. Normal copyright law applies under those circumstances - like a book or a cd.
That's ridiculous. If MS sells (or resells) their product they can't dictate that you agree to a license to use it. You already bought it.
It may be difficult as hell to get it working without ever clicking on the licensing stuff, but it's unimaginable to me how MS could violate the first sale doctrine.
The GPL is much saner in this regard - normal copyright law permits nearly any use of the material w/o additional licensing, and still protects all the standard rights that the copyright holder has. You don't need to agree to a license to use emacs; it's irrelevant. (the GPL only comes into play when you want to exercise rights that are by default reserved to the copyright holder, like redistribution of copies and modified copies)
This doesn't mean that the GPL is the end-all be-all of licenses, just that use has never required a license after sale.
What the hell are you on? Copyright has never ever covered use. It violates the doctrine of first sale. (which is basically: once the copyright holder sells a copy, his control over anything but the distribution of new copies is gone forever)
When you buy Windows you can use it w/o having to agree to the license (although you're on your own as far as installing it goes) and use it in any way you want without violating copyright law.
If you agree to the license though, you end up giving up (maybe not in a manner that's legally enforcable) most of your rights that you get under the law and nature.
Copyright holders do not have the authority to control usage after sale, the right to do so, or a history of having done so in the past.
That part of the law in question is basically to cover the technical workings of a computer program. You have a copy on the cd. You have a copy on the hd. You have a copy in RAM and bits and pieces in the processor and cache at various times. Feel free to run your computer with the cd as main memory, but I like to load a copy into RAM and execute it from there.
I just don't agree. By your argument you could start selling homemade copies of Windows without getting permission from MS to do that. Maybe I'm a cynic, but I don't think a judge in the land is going to rule that MS can't take action against you for illegal competition.
It's LEGAL competition that I think they aren't allowed to hinder.
No, you didn't understand what I was saying. If you develop a product that competes against their similar product, they cannot take action. But if you infringe on their patents, they CAN take action. You are no longer legally competing when you use their patents w/o their permission, and there's no reason for them not to be able to sue the pants off of you.
OTOH if you could implement a player that played their stuff but did NOT infringe on their patents (reverse engineering is generally not sufficent) you'd be totally fine. But that's not what you propose.
There is a gigantic difference between honest competition and patent infringement. We still can't use their patents; they are not prevented from taking legal action if we do.
Sure it does. Arguing that it's semantics is like claiming that you own someone else's property. Or that you own something that's common, like the atmosphere or the EM spectrum.
Ownership has a very specific meaning. Pretending otherwise doesn't change things. Information can't be owned because it's impossible to satisfy the qualifications for ownership. (Being able to use it in any way, being able to control it's use by others, being able to dispose of it)
And legally, ownership doesn't extend to information.
Please feel free to disregard language, law and the nature of reality. But don't expect the universe to comply with your misconceptions.
They can still keep their patents. But they can't take action (etc) if a 3rd party develops something that competes with their software.
So if you develop a player for FOO multimedia files and are thus competing with MS they can't attack you. But you can't just use their patents - that's not the same as competition, b/c it's illegal on it's own.
it's not stealing. you can't steal information. you can't own information. copyright law doesn't claim otherwise, though 'IP' (an offensive idea if there ever was one) lawyers like to claim otherwise. mostly b/c if they can fool people it helps their clients.
for the zillionth time, a copyright is: the temporary right to control who may make copies of some given information, under some but not all circumstances.
that doesn't meet the qualifications needed to own something at all. and information by it's nature can't be owned. attempts to extend property law to information fail because they fly in the face of reality.
so it's not 'stealing', it's 'unauthorized redistribution of copies of copyrighted information.'
sorry if it doesn't roll off the tongue as easily, but claiming otherwise implies that copyright holders have rights that they simply do not have, are unconstitutional and are unrealistic.
He's been asked this. I had the opportunity to see him in Boston when he was hawking the book (which I'd already read, but got autographed)
IIRC it's because if he had had the characters use Linux, PGP, etc. then he'd have to describe them accurately. He gained more freedom in his writing (while still letting everyone who knew what they were know that he knows too) by having Finux, Ordo, ETC, etc.
Just read the Register. Simon (the original author of BOFH) writes a continuing BOFH story for them every week or so. He hasn't lost it, though the waffle iron bit _was_ good.
As I said - MS is capable of making evolutionary improvements. But they didn't develop streaming video or audio. AFAIK (I've never looked into it in depth) CU-CME and Real were the innovators in that regards. I did not say that all MS products were lousy. I loved Word 4 for the Mac, and I like a lot of things about IE. Neither of those products either are innovations.
WRT Standard Oil, sure monopolies can be good for consumers in the short run. ATT wired much (though hardly all) of the country.
MS could give everyone in the US a hundred dollars.
However, without incentives to further compete, monopolies will cause whole markets to stagnate - improvements will come only when the monopoly wants them to come. Please enlighten us as to why Bell didn't have Caller ID, commonplace cellphones, cheap-as-dirt pagers, *69, etc. but did find the time to sue people who put hard covers on their phone books.
Having a healthy economy with lots of churn and no guarantees that you're going to succeed is good for consumers. Cheap stuff is not worth having markets dominated by a few big players. It's penny foolish but pound wise.
1. The fact that there is competition does not preclude MS from being a monopoly. You're a monopoly when you do not have to 'keep up with the joneses.' MS doesn't have to improve its products - it can merely require that anyone it does business with use MS software exclusively or not at all. The position of MS in the marketplace gives it the clout to be able to do this 99.44% of the time. That's why they're a monopoly.
And even being a monopoly is considered acceptable, provided that you don't use one monopoly to get another one. But MS did - OSes and content browsers are functionally seperate. Their IE strategy attempted to give IE as much of a monopoly as Windows. This has been illegal for a LONG time and MS knew it. They're not innocents.
2. Stifling competition is considered to harm consumers. Monopolies aren't capitalists. They don't have to satisfy their customers. They only have to keep their customers from going somewhere else. This just isn't tolerated.
3. The superiority of a product has nothing to do with the business practices. Windows is not being burned. MS is merely not being allowed to misuse it. If you like it you are still permitted to use it. No one's stopping you.
4. These are the rules of doing business. MS knew that. No one forced MS to break them - they chose to do so and now they're suffering the consequences. And the govt. has had this (pretty rarely exercised in the big picture) power for a century. Oddly enough it's worked great in telecommunications, microcomputers, entertainment, petrochemicals, transportation, and a number of other fields.
I think you're ignoring the innumerable successes of antitrust because you can't stand the idea that it's possible for a business to harm the society it exists in, and that the society takes precedence.
The DOJ (the plantiff in this case) is part of the executive branch. The judge and the court is part of the judicial branch. And politics do play a role, albiet less of one, in the judicial branch. (in fact, some judges are elected)
Bwah ha ha! MS wouldn't know innovation if it bit it on their collective asses. I have never been able to think of something they thought up themselves. Evolutionary changes yes, but then, that's not innovation.
Of course, where were you when Standard Oil was broken up? How about when the movie studios stopped owning all the movie theaters? ATT? IBM nearly coming to tbe brink, giving MS and the rest of the microcomputer industry the room they needed to grow?
Competition keeps companies (slightly more than otherwise) honest. Monopolies like MS have no competition that actually threatens them. They have no reason to be good capitalists. Their only motivation has to be to protect their monopoly. And that hurts everyone - even MS, b/c the economy is harmed.
Ironically, the weather guys are predicting that this afternoon we might get some sunlight here in Seattle (it's overcast today). I wonder if they were speaking metaphorically;)
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Well, Nader is largely concerned with product liability, IIRC. I've got to admit that I'm torn on the subject. I think that it's easily abusable by both sides (car companies can claim that cars that are known to explode randomly are safe, while cities can sue firearms manufacturers for making tools which can be used illegally)
;)
If anyone has a reasonably consistent way of dealing with this, I'd like very much to hear it. I've been thinking about the issue for quite a while now and I can't see a good solution.
However, I don't think that liability necessarily has a hell of a lot to do with copyright. They're frequently attached in licenses, but that's more to force you to agree to one unrelated thing by preventing you from really using what you bought. I guess MS is monopolistic even in their licensing agreements
Fortunately you have to apply to the US Patent and Trademark Office for a trademark, and it's a bit more limited than you'd imagine for what constitutes dilution. (e.g. Linux OS and Linux Detergent are sufficiently different that they don't dillute each other)
No one has been saying that when you buy a copy of Windows that you're buying the copyright. As we already discussed to death, a copyright, a copyrighted work, and a medium containing a copyrighted work are three different things.
When you buy a copy of Windows at the store, first sale either occurs then (if it's the MS store or if the store is selling it on behalf of MS) or has already occured (if the store bought it from MS or from a reseller.
You might argue that MS agrees that anyone who purchases Windows from MS is prohibited from reselling the software unless the person who would purchase it agrees to the license beforehand, but I've never seen anything that indicates that this occurs, nor would I think it applies all that much given that agreement to that is not required when you're at the register.
Do you seriously think that MS would win a case in which it not only accused computer stores of breech of contract, but of users and further resellers in traficking in stolen goods/copyright infringement? I live a mile away from MS - I think I'll see if they have a company store that operates like that (requiring that I agree before buying to preempt first sale) but I bet you $5 that it doesn't.
As always, I'm talking about Windows - the copyrighted content and the carrier. I have never said that MS sells the copyright to Windows, though it would make for a fun contest if they did.
When first sale occurs, as it does at some point prior to you walking out of the store with a copy of Windows MS has lost their ability to force you to agree to their license. You can use Windows in any way you wish - from burning the CD to opening the binaries as a raw image file in Photoshop and calling it art. Should you want to use it as a computer operating system you're within your rights to. And you can resell it too (normal copyright laws apply) because you own it. (Windows, not the copyright)
The trick is, when you attempt to install it on a computer the standard installer will not let you use Windows unless you agree to a license that restricts you from exercising all the great rights you get after first sale. IF you agree to MS's license (which pretty certainly means clickwrap not shrinkwrap) then you lose the ability to do anything that the license doesn't let you do. But this doesn't have to be the case.
What if you can somehow manage to pull off a technical miracle and install Windows through some other method? You have already bought your copy; first sale is a done deal and you're free to use Windows as an OS. You did not agree to the license, and never did anything in the installer otherwise. As I said a long time ago, this would be really really hard to do. But it would still be perfectly legal and would not restrict you the way MS does. As long as first sale takes place without your being required to agree to a license as a condition of that sale, you're safe.
As for shrinkwrap, I really really doubt, given that first sale occurs before the shrinkwrap is broken, that it would get upheld as binding in this situation. The CD is your property (and the information within it, though not the copyright upon it) and so is the sticker and the rest of the packaging. It violates first sale to say that opening it would trigger a license.
UCITA changes this for the worse. However IIRC VA's UCITA is not in effect yet and MD's is not the same as the 'default' UCITA. Additionally UCITA can be struck down by the courts if it conflicts with fair use and I have no doubt that it will be struck down. However, looking at all the posts, I think I see where our disagreement begins. As far as I can tell, you're talking as though UCITA is fully in effect and being used. I'm not AFAIK currently effected by UCITA, nor do I think that it'll hold up when challenged (Fair use, first sale, etc. trumping any particular contradictory law 9 times out of 10) so I'm still operating under the normal conditions.
Answering the very specific question you ask in your most recent post, there has been a case (which is well known when discussing first sale, but I can't remember the name at the moment) in which the publisher of a book tried to claim that the book could not be resold unless the price were no lower than $1. This was found unconstitutional but is clearly an attempt by the copyright holder to impose restrictions on how the owner of the book could resell it. It strikes me as the same as the psuedo-license agreements that are shrinkwrap.
I'm willing to consider clickwrap more or less legally binding (provided that it takes more than ANY use to trigger it - some deliberate action intended to trigger the license is required IMHO) though the licensee and the terms of the license are always issues that have to be considered wrt binding anyway.
Well perhaps we don't have a constitutional basis for copyrights or patents then ;)
Seriously, the copyright clause gives the Congress the power to grant limited exclusive monopolies to authors and inventors for their works.
The first amendment prevents the Congress from making any law that abridges the freedom of speech or the press.
How this is reconciled in practice is that the first amendment grants freedom of speech (which naturally includes the ability to copy other's works) but that that freedom is ideally abridged only a little bit to permit the copyright clause to come into effect as well as to prevent certain crimes like incitement to murder.
Fundementally the copyright clause is an infringement on free speech, but even the very early US had copyright laws while the framers were alive so I don't think that anyone has had an issue with the existance of the infringement.
The scope of the infringement on the other hand is of great concern and has come up time and time again.
I think that would fold into the warranty. No Warranty implies that it's not guaranteed to work for anything, ever. Would that not include nuclear reactors or life support systems?
That's absolutely right. The copyright is a right which is the property of the author. You own the copyright. NOT, you own the work. No one can take the copyright from you, and the copyright itself satisfies the requirements for ownership. The actual copyrighted work does not. There is a very important difference.
Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.
Again, I agree. The copyright is not transferred along with the work or a media which contains the work. I never said it did. Not once have I disputed the ownership of the COPYRIGHT, I have only disputed that the copyright does not confer ownership of the WORK.
A copyright and a work are two seperate things you know. All the quotes you put up there repeat this; "owner of the copyright." They never say "owner of the work" Do you disagree? Do you claim that the quotes you yourself quoted say something other than what they plainly do?
No one owns copyrighted material.
In order to own something you must satisfy three conditions: (reciting from memory here)
1) You must be able to use the thing as you see fit
2) You must be able to control when and how others may use it
3) You must be able to dispose of it as you see fit (e.g. destroy, sell, give away)
Now then. Let us say that I have a brick. Do I own it?
1. Can I use the brick? Yes. I can build stuff with it, or throw it or stand on it, etc.
2.Can I control how others can use the brick? Yes. (although this is sketchy due to the nature of property as an artificial concept anyway)
3. Can I dispose of the brick? Yes. I can give the brick to you. Or throw it away. etc.
Thus I own the brick.
Now let us consider the BOOK Cryptonomicon, but not the STORY which the book (a tangible thing) contains.
1. Can I use it? Yes. I can read it, light a fire with it, wrap fish with it, store it in the privy for both reading material and toilet paper, kindle fires with it, etc.
2. Can I control how others use it? Yes, just as much as any other piece of property can be controlled.
3. Can I dispose of it. Yes. I can burn it, sell it, etc.
I own the BOOK Cryptonomicon.
But now let us consider the STORY within the book. If anyone has ever owned it, it would be Neal. Let us see if he has ever been able to satisfy these requirements (it's a given that I don't)
1. Can Neal use it? Yes. He can also read the story, gain pleasure from it, rewrite parts of it, quote it, etc.
2. Can Neal control how others use it? No. If Neal permits someone else to use it at all, ever, he cannot take the information back. The 2nd person will remember the story and Neal is incapable of doing anything about it. (other than lobotomizing the 2nd person or something but I doubt this is acceptable)
3. Can Neal dispose of it? No. Again, unless he can force himself to forget about it altogether, he can only give people copies. Whenever anyone reads the story a copy of the story is made from the book (itself a copy of the original in Neal's brain) to the brain of new reader. The original is never transferred at all, although the medium on which some copies are contained may be transferrable.
Thus Neal does not own the STORY Cryptonomicon.
Nor does the publisher. Nor you or I. Due to the nature of reality, the human mind and information it is impossible to satisfy the requirements for ownership when it comes to information.
Now then, as for your continued misconception of copyrights, it has just been proven that information is unownable. Even as pure thought it still cannot satisfy the final requirement for ownership.
US Copyright law does not change this in the least. It does not confer ownership of information. It never has, the copyright clause in the Constitution forbids it twice (which is pretty good for what is IIRC a single sentence) and it would be impossible anyway.
What copyrights ARE is: An exclusive right (for a limited amount of time, the intent being to promote the useful arts and sciences) to the copying of information under some, but not all circumstances.
You can see why this gets shortened to copyright; it concerns (some) copying (sometimes). Copyright cannot be extended to use.
When you copyright some material, what is happening is that no one else is allowed to make an additional copy of it. You hold the 'copy right.' (I bet you wondered why they weren't called licenserights. However, there are no small number of limitations to that right.
The reason that there are limitations is because the justification for having copyrights and patents too (which are wholly artificial - we already proved that information is unownable) is that it will promote the arts and sciences. In order to promote the arts and sciences though, the copyright must exist for a limited time. If it's too long, there will be no advancement because the tools or knowledge require for the advancement are not freely usable.
Imagine if Einstein had had to pay the heirs of Newton in order to do research related to gravity. Einstein would have remained a patent clerk and physics would have stagnated. Information is most valuable when everyone can use it to generate more information.
Other forms of fair use exist because it would be harmful to society if they did not. Copyright exists to help society. If copyright does harm it, it is copyright, not society that must be corrected.
So when you buy a copy of Cryptonomicon, the rights that the copyright holder has are quite limited. The only thing that they can do with the information that you can't do is reproduce it in ways that are not considered fair use (such as making a copy and selling it).
There is no license involved, other than the financial transaction between you and the bookstore that consists of: Here is money for that book.
Copyright holders copyrights are protected by law, not license. Your rights are protected by law which is required to favor you over copyright holders.
Why is this so difficult to understand? Have you READ 17 USC? They're the actual copyright laws. (Although they can be found unconstitutional. Only the copyright clause of the constitution itself is necessarily constitutional, despite conflicting with the first amendment) I'm still going through them - they're long as hell and a hard read - but they're pretty damn clear on this issue. Copyrights aren't licenses.
Nope. You go to the store, you buy a box, it's yours. Same as with any other crunchy media with a chewy content center; Books are property which hold information; CDs are property which hold information; Videotapes are property which hold information... seeing a trend? Why is it that first sale is consistently upheld here? Perhaps because it's universal.
ANY time you buy media with content you get to use the content (assuming there is not already some illegality in the chain - stolen CDs, etc.)
When you go to the store and buy Quake 3, you buy a CD and the inherent right to use the stuff on the CD. Other than technical issues w/ installers and such, you do not have to agree to the license in order to use it.
For decades companies have been trying to dupe people into thinking that they can only buy licenses that the company can unilaterally alter or revoke w/o cause, but it just isn't true. Copyright law trumps your 'you only buy a license' idea.
Software is copyrightable material and as such is treated like any other copyrighted material. It's tragic when people give up their rights when they don't have to but that doesn't change things. If software doesn't have to play by the rules of copyright then why pray tell, should it get to be copyrighted at all. Copyright is a privelege, not a god-given right. (OTOH copyright's mortal enemy, free speech _is_ a god-given right)
I believe that the only legal information a program needs to have is:
*Copyright notice (if any)
*Trademark notice (if any)
*Patent notice (if any)
*Warranty statement.
This ends up meaning that MS could (if they didn't have their heads so far up their asses that they can see the contents of their stomachs) print on the Office CD something like:
MS Office(tm)
(c)2000, Microsoft(tm)
US Patents 1,234,567, 1,234,568
No warranty.
And that would be enough. God knows if I ever put out software or something that's going to be how I do it. Copyright law is restrictive enough already; probably too much so.
It blocks fair use which is stepping beyond the limitations of copyright. He's normally allowed to make copies under certain circumstances. The license doesn't appear to permit that, and Norton still has their copyright whether it's in the license or not; it does not need to be reaffirmed in the slightest.
But it forces you to transfer the license (instead of just throwing it in the trash) along with the CD. IANAL, but AFAIK you do not have to agree to the license in order to use the product. (technical issues aside) If you buy the box Xing has no legal power to force you to use it under the terms of the license. Normal copyright law applies under those circumstances - like a book or a cd.
That's ridiculous. If MS sells (or resells) their product they can't dictate that you agree to a license to use it. You already bought it.
It may be difficult as hell to get it working without ever clicking on the licensing stuff, but it's unimaginable to me how MS could violate the first sale doctrine.
The GPL is much saner in this regard - normal copyright law permits nearly any use of the material w/o additional licensing, and still protects all the standard rights that the copyright holder has. You don't need to agree to a license to use emacs; it's irrelevant. (the GPL only comes into play when you want to exercise rights that are by default reserved to the copyright holder, like redistribution of copies and modified copies)
This doesn't mean that the GPL is the end-all be-all of licenses, just that use has never required a license after sale.
Oh, I think that Bush is regretting appointing Souter. He's worked out suprisingly well.
What the hell are you on? Copyright has never ever covered use. It violates the doctrine of first sale. (which is basically: once the copyright holder sells a copy, his control over anything but the distribution of new copies is gone forever)
When you buy Windows you can use it w/o having to agree to the license (although you're on your own as far as installing it goes) and use it in any way you want without violating copyright law.
If you agree to the license though, you end up giving up (maybe not in a manner that's legally enforcable) most of your rights that you get under the law and nature.
Copyright holders do not have the authority to control usage after sale, the right to do so, or a history of having done so in the past.
That part of the law in question is basically to cover the technical workings of a computer program. You have a copy on the cd. You have a copy on the hd. You have a copy in RAM and bits and pieces in the processor and cache at various times. Feel free to run your computer with the cd as main memory, but I like to load a copy into RAM and execute it from there.
I just don't agree. By your argument you could start selling homemade copies of Windows without getting permission from MS to do that. Maybe I'm a cynic, but I don't think a judge in the land is going to rule that MS can't take action against you for illegal competition.
It's LEGAL competition that I think they aren't allowed to hinder.
No, you didn't understand what I was saying. If you develop a product that competes against their similar product, they cannot take action. But if you infringe on their patents, they CAN take action. You are no longer legally competing when you use their patents w/o their permission, and there's no reason for them not to be able to sue the pants off of you.
OTOH if you could implement a player that played their stuff but did NOT infringe on their patents (reverse engineering is generally not sufficent) you'd be totally fine. But that's not what you propose.
There is a gigantic difference between honest competition and patent infringement. We still can't use their patents; they are not prevented from taking legal action if we do.
Sure it does. Arguing that it's semantics is like claiming that you own someone else's property. Or that you own something that's common, like the atmosphere or the EM spectrum.
Ownership has a very specific meaning. Pretending otherwise doesn't change things. Information can't be owned because it's impossible to satisfy the qualifications for ownership. (Being able to use it in any way, being able to control it's use by others, being able to dispose of it)
And legally, ownership doesn't extend to information.
Please feel free to disregard language, law and the nature of reality. But don't expect the universe to comply with your misconceptions.
I loathe MS but I disagree with you.
They can still keep their patents. But they can't take action (etc) if a 3rd party develops something that competes with their software.
So if you develop a player for FOO multimedia files and are thus competing with MS they can't attack you. But you can't just use their patents - that's not the same as competition, b/c it's illegal on it's own.
it's not stealing. you can't steal information. you can't own information. copyright law doesn't claim otherwise, though 'IP' (an offensive idea if there ever was one) lawyers like to claim otherwise. mostly b/c if they can fool people it helps their clients.
for the zillionth time, a copyright is: the temporary right to control who may make copies of some given information, under some but not all circumstances.
that doesn't meet the qualifications needed to own something at all. and information by it's nature can't be owned. attempts to extend property law to information fail because they fly in the face of reality.
so it's not 'stealing', it's 'unauthorized redistribution of copies of copyrighted information.'
sorry if it doesn't roll off the tongue as easily, but claiming otherwise implies that copyright holders have rights that they simply do not have, are unconstitutional and are unrealistic.
He's been asked this. I had the opportunity to see him in Boston when he was hawking the book (which I'd already read, but got autographed)
IIRC it's because if he had had the characters use Linux, PGP, etc. then he'd have to describe them accurately. He gained more freedom in his writing (while still letting everyone who knew what they were know that he knows too) by having Finux, Ordo, ETC, etc.
Just read the Register. Simon (the original author of BOFH) writes a continuing BOFH story for them every week or so. He hasn't lost it, though the waffle iron bit _was_ good.
As I said - MS is capable of making evolutionary improvements. But they didn't develop streaming video or audio. AFAIK (I've never looked into it in depth) CU-CME and Real were the innovators in that regards. I did not say that all MS products were lousy. I loved Word 4 for the Mac, and I like a lot of things about IE. Neither of those products either are innovations.
WRT Standard Oil, sure monopolies can be good for consumers in the short run. ATT wired much (though hardly all) of the country.
MS could give everyone in the US a hundred dollars.
However, without incentives to further compete, monopolies will cause whole markets to stagnate - improvements will come only when the monopoly wants them to come. Please enlighten us as to why Bell didn't have Caller ID, commonplace cellphones, cheap-as-dirt pagers, *69, etc. but did find the time to sue people who put hard covers on their phone books.
Having a healthy economy with lots of churn and no guarantees that you're going to succeed is good for consumers. Cheap stuff is not worth having markets dominated by a few big players. It's penny foolish but pound wise.
1.
The fact that there is competition does not preclude MS from being a monopoly. You're a monopoly when you do not have to 'keep up with the joneses.' MS doesn't have to improve its products - it can merely require that anyone it does business with use MS software exclusively or not at all. The position of MS in the marketplace gives it the clout to be able to do this 99.44% of the time. That's why they're a monopoly.
And even being a monopoly is considered acceptable, provided that you don't use one monopoly to get another one. But MS did - OSes and content browsers are functionally seperate. Their IE strategy attempted to give IE as much of a monopoly as Windows. This has been illegal for a LONG time and MS knew it. They're not innocents.
2.
Stifling competition is considered to harm consumers. Monopolies aren't capitalists. They don't have to satisfy their customers. They only have to keep their customers from going somewhere else. This just isn't tolerated.
3.
The superiority of a product has nothing to do with the business practices. Windows is not being burned. MS is merely not being allowed to misuse it. If you like it you are still permitted to use it. No one's stopping you.
4.
These are the rules of doing business. MS knew that. No one forced MS to break them - they chose to do so and now they're suffering the consequences. And the govt. has had this (pretty rarely exercised in the big picture) power for a century. Oddly enough it's worked great in telecommunications, microcomputers, entertainment, petrochemicals, transportation, and a number of other fields.
I think you're ignoring the innumerable successes of antitrust because you can't stand the idea that it's possible for a business to harm the society it exists in, and that the society takes precedence.
The DOJ (the plantiff in this case) is part of the executive branch. The judge and the court is part of the judicial branch. And politics do play a role, albiet less of one, in the judicial branch. (in fact, some judges are elected)
Bwah ha ha! MS wouldn't know innovation if it bit it on their collective asses. I have never been able to think of something they thought up themselves. Evolutionary changes yes, but then, that's not innovation.
;)
Of course, where were you when Standard Oil was broken up? How about when the movie studios stopped owning all the movie theaters? ATT? IBM nearly coming to tbe brink, giving MS and the rest of the microcomputer industry the room they needed to grow?
Competition keeps companies (slightly more than otherwise) honest. Monopolies like MS have no competition that actually threatens them. They have no reason to be good capitalists. Their only motivation has to be to protect their monopoly. And that hurts everyone - even MS, b/c the economy is harmed.
Ironically, the weather guys are predicting that this afternoon we might get some sunlight here in Seattle (it's overcast today). I wonder if they were speaking metaphorically