That's enough to make it useful, which is good given that it's a utilitarian concept. That doesn't really seem to impact its morality, though, I'm afraid. If it helps though, I generally find copyright to be amoral, though the underlying foundation still isn't all that amazing in that dimension.
Also, an interesting fact: that concept was known to the classical world, but they ignored it. It was said that the inhabitants of Sybaris (a Greek colony infamous for excessive luxury) would reward chefs who invented novel and delicious recipes with a one-year patent on it, as an incentive to create them. Of course, this was just a joke people told about them, not to be taken seriously, but the idea was there.
There was a hardware bug involving the keyboard of the II which was tracked down and corrected shortly before the II was introduced at the Faire. It might have been the result of a bug in the "original design" as opposed to, say, manufacturing error, but I don't know. Perhaps someone would like to ask Woz about it? I did notice that you avoided mention of software bugs, of which there were a few.
Eldred pretty much took care of that, at least for CTEA. Of course, there was not an assurance that another CTEA would fare as well, at least not if there is the sort of pernicious behavior that was complained of.
and of course, no mention of the rights being transferable to Artificial Legal Entities...
Why would there be that in the Constitution? It is a very slim document (take a look at how long state constitutions are; it's the difference between a limited federal government and a plenary state government) and the clause in question is merely granting a power to Congress. Whether and how that power is exercised is up to them, aside from the handful of requirements in the Constitution.
They have to vest rights in authors. It doesn't say that the authors are to be prohibited from doing whatever they like with them later on. Given that all copyright law in existence prior to the Constitution allowed copyrights to be alienated and that even our very first federal copyright law allowed alienation, there's simply no basis for arguing that the Constitution prohibits it. Besides, it would be grossly paternalistic to second-guess authors in that regard. So long as the right is vested in them (merely for practical purposes, mind you) initially, they can do whatever they like with it, just as they would with a brick or a piece of land.
I believe you'll find that the rule against perpetuities is of English origin. The US is better known for being early in abolishing the fee tail.
Somehow, though, we've never viewed Copyright in this same light
Copyright originated from this manner of thinking. May I suggest you read this paper about the origins of copyright, particularly in the US. I enjoyed it a lot. I would also fight very hard against life+18. For some works, 15 years is far too long. A modest quantity of very short terms (e.g. 1-2 year terms which at most might be renewable up to a total of 20 years, and in some cases much less) strikes me as better given how the economics of creative works actually plays out.
Fundamentally, it comes down to whether it is moral to prevent the free flow of information and creative works, including derivative works of other artists, for one's own financial benefit, or whether it is moral to try to spread those works, to preserve them by distributed effort (n.b. the libraries of antiquity did not survive; only the widespread dissemination of works got us what little we have), and to encourage and assist in the free use, enjoyment, and creation of others.
I can tolerate copyright on utilitarian grounds, but it is basically amoral, and if not that, then immoral.
The point of copyright laws is to protect the creators of them such that they have an interest in producing more of them, on the grounds that it's in the public's interest for there to be a range of songs, books etc to consume.
That's half of it, actually. The other objective of copyright law is to have as little or no copyright law as possible, on the grounds that it is in the public interest for works to be free to use and disseminate in any manner, without permission, and without cost.
So it's not good enough to just incentivize authors, you also have to craft the incentives so that you are wringing the most out of them for the least cost to the public. Plus, of course, original and derivative works are equally good, so it helps artists quite a lot for them to be able to freely use each other's works.
But I listen to a lot of contemporary classical music, for instance, and I'm not sure who's going to pay for the rehearsals and recordings of orchestras if it was legal to just copy it. Even in the case of long out of copyright works from hundreds of years ago for string quartet (ie no conductors, minimal recording technology required), if the performances aren't to be protected then what's in it for the performers to go to the effort of recording it?
Until 1971 sound recordings could not get a US copyright. So apparently, they made money anyway. There are ways to make money as an artist that don't involve copyright, you know. In fact, in some artistic fields, copyrights are pretty irrelevant. Fine artists really don't use them at all, for example, because the market is for specific copies that the artist himself made. An original Picasso is worth a lot. A print of a Picasso is worth a few dollars. And most fine artists are not famous enough to make money from the mass market anyway. Orchestras don't do a great job of supporting themselves anyway. It's the kind of thing that money gets spent on, not that makes money. Even with the strongest copyrights ever, I don't see that changing. A copyright doesn't ensure a market or profitability; it only concentrates whatever money there would be for that work anyway, and rather inefficiently at that.
But you don't support legislating against them? Why should we concede the realm of law to them? A boycott is not all that effective, but reforming the copyright laws in the public interest could do wonders.
(1) fair use is not a right backed by a law, it's a doctrine (it's essentially a recognized loophole or accepted defense),
The right is the right of free speech/press, and there is a statute regarding fair use at 17 USC 107 (though it remains a judicial doctrine, which does have the force of law in our common law system).
Fair Use cannot be encoded into a machine.
Quite true. Even the courts often have difficulty with it.
The moment anything is published it is copyrighted. Its about prior art, establishing it.
No, the moment any copyrightable work is created, it is copyrighted. Publication is no longer a factor, though it really ought to be as it is extremely wasteful to have unpublished copyrighted works. (A modicum of protection for a work which is created, unpublished, but which is soon going to be published is tolerable, as we don't really want to encourage piracy of manuscripts where authorized publication is about to happen. But it should be weak and short-lived protection, to encourage authors to publish as fast as possible.)
Also, prior art is a patent concept. It is irrelevant in copyright, which has no novelty or nonobviousness requirements.
And furthermore, that protection shall apply ONLY to that material worthy of protection under Article I, Section VIII, specifically, that such material promotes the progress of Science of the USEFUL Arts.
Architecture is a Useful Art.
Brittney Spears is Not.
You've got that backwards, actually. Patents deal with the useful arts, while copyrights deal with science. Remember, the Constitution was written in the late 18th century, and the English language is one which changes quite a lot. In the English of the day, science simply meant knowledge, while the useful arts meant applied technology. You can look this up in the OED, which is great in that it provides historical definitions of words, and not just modern ones. There are some remnants of these old meanings left, too, e.g. technology being state of the art, patent law dealing with prior art or persons having ordinary skill in the art.
But mostly it is evident from the structure of the clause itself. The clause reads:
The Congress shall have power... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
That is, it goes science/useful arts, then authors/inventors, then writings/discoveries. The first in each pair deals with copyright (science, authors, writings) and the last with patents (useful arts, inventors, discoveries).
Plus of course, in the actual laws, you'll find that what we normally call patents with regard to inventions are really a branch of patents called utility patents (because they must be useful; cf. plant patents and design patents). Utility is a key issue for patentability, and it's the reason why perpetual motion machines are not patentable: they don't work, and therefore lack usefulness. In copyright law, OTOH, some sorts of works are made non-copyrightable if they are useful. For example, in the Brandir case, the person who created those oscillating tube bike racks tried to get a copyright on them, claiming they were sculptures. Because of the utility doctrine, he was denied.
This is also why, until extremely recently, architectural works were not copyrightable. They only have become so due to pressure from outside the US. Given that copyrights don't seem to incentivize architects to design or erect buildings, but do discourage the public from freely making use of those buildings' forms, it is in fact a very bad idea to allow architectural copyrights, and it's one of the things that will need to go on the chopping block as reforms are instituted. Architects might be artists of a sort, but that alone is not a justification for giving them copyrights.
As for Ms. Spears, she is crappy, but the framers would have no problem with her works being copyrightable (other than music not having been copyrightable subject matter regardless of who did it until a little later). Copyright does not involve judgments of artistic merit. We don't want the government doing that, since it is so bad at it. Better to let the market decide, what with art being subjective. And better to structure copyright in such a way that flops tend to enter the public domain rapidly since even the artist will likely stop caring soon enough, by means of things like requiring registration, frequent short-duration renewal terms, short overall terms, etc.
Well, civil and criminal infringement are pretty different, so I don't think that Grokster would be a useful precedent for a criminal infringement case. This is not to say that there might not be some other statute or precedent which is relevant, but you're going to find it in the realm of criminal law, not copyright law.
With regard to copyright, there is a statute of limitations, and I suppose an equitable argument could be made, e.g. laches, given the right circumstances. But that really only works on specific infringements, and wouldn't affect the copyright as against anyone else.
The idea is that the kernel will have to shrink considerably in order to allow MS to cram in more DRM features -- both to keep people from pirating Windows, and as part of their ambitious program of colluding with the RIAA, MPAA, et al. There is not a guarantee that the smaller kernel will be able to do as much as at present, just more efficiently; it'll lose functionality. But they're betting that no one will notice since everything you do will have to be vetted by someone else who would generally prefer it if you didn't. (In order to reflect the long wait, the hourglass will change to a calendar)
First, you're off base about the bases for a EULA. You don't need much for them to be possible.
Second, I don't think that that's what they're actually doing. Whenever anyone puts anything up on the web for the public to look at, they are, by their conduct, granting an implied license to the public to make such copies as are necessary for those pages to be looked at. Otherwise it would be illegal to look at web pages which had been put up lawfully, which would be an absurd outcome. Note that it is copyright infringement on the part of the person browsing the web to even so much as look at an infringing web page, since that person is making more copies of it. There has been at least one case to this effect, possibly more.
Here, rather than use that normal implied license, they are trying to use an express license which still seems to grant users that right, but specifically denies them the right to look at the source of those copies. Since this license is the only source of your right to make the copies into RAM, cache, etc. that you have to make in order to view the page at all, you still need to accept. The issue is whether solely their express license is in effect, or if they've bollixed it up and the implied license could still be used as an alternative.
And of course, you could always argue fair use if you did something not permitted under either license, but that's always a bit of a gamble, since any use could be a fair use or not, depending on the specific circumstances.
Yes, but as I understand the matter, there is a _direct exception_ in US copyright law that allows making temporary copies for the purpose of viewing material.
There is not. The best you could get would be fair use, and whether or not a specific use is fair or not will always depend on the circumstances involved.
What I mean is, how can they put conditions on your right to make a copy of a publicly available page being cached on your own computer for viewing?
If it wasn't licensed, you wouldn't be able to lawfully look at the web pages to begin with, due to the ever-annoying consequences of MAI v. Peak. This is why I don't like it when people concentrate on term length as if that was the only problem with copyright; among (many, many) other things, we'll also need better exceptions for incidental copies made by computers and probably a higher mens rea standard for infringement.
Alternatively, you could argue fair use for whatever you're doing outside the boundary of the routine implied license for materials authorizedly published on the net. It's not a difficult argument, really, so long as you're not doing anything noteworthy with the web page (e.g. changing the text and republishing it). But it's still sad that we've allowed things to get so bad that this would even be an issue.
Further, how can they expect you to be bound by a license that you haven't agreed to?
Agreement can be inferred from conduct in some cases. Consider the GPL: it's not as though you have to send a letter to the FSF or anyone indicating that you're accepting the terms of the license. Where the license deviates from the norm, however -- as here, with its unusual express terms -- then we probably get into Specht territory where those terms probably will be difficult to apply... though Specht partially depends on not knowing about those terms, so the publicity isn't really helping any of us.
Can you restrict the use of a copy with copyright? My understanding was that you couldn't.
You can't. That's the Bobbs-Merrill case from which the first sale doctrine originates. But there are ways to restrict the use of a copy by other means. The keys are what the use consists of, and access to the work. If the work is published, then you've lost control of access to it, and can only control certain limited uses by means of copyright (e.g. making a new copy). When the copyright dies, so does that portion of your control. If access to a specific copy in your control is needed, then you can condition that access on the acceptance of binding terms. This can be a part of a sale, or lending, etc. Whether doing this in every case in order to avoid the future possibility of a work being published and effectively being in the public domain is against public policy is an interesting issue, but until there's an actual conflict, it's moot.
Further, I've read that there's been a legal precedent set with software that, since their use implies caching to RAM, that form of "copying" does not require a license to copy.
You've got that backwards. Copying a copyrighted work into RAM, even for caching, is infringing, barring authorization, an applicable exception, etc. That's the MAI v. Peak case; it's worth a read, as is the Intellectual Reserve v. Utah Lighthouse Ministry case which is the logical outcome of that precedent.
Selling the first copy of software carries the implied right to install the software on your hard drive and cache it in RAM, and those copies don't require a license.
Is that not true?
That is also true. There is an exception at 17 USC 117 which lets the owners of a copy of a computer program make copies and adaptations freely in order to run it and to back it up. But it only applies to software, and only to people who own a copy (which naturally raises the issue of EULAs, and how they interact with 117). So it doesn't seem to be much use here. As I said, a broader exception for computers is needed. So are some other reforms.
I said it was possible. I didn't say that this particular example (which I haven't taken a close look at anyway) would qualify. Indeed, based on the descriptions here, I think it wouldn't manage to accomplish whatever it is that is intended.
copyright could be used to prevent copying and distribution of the source, but viewing the source would not be protected by copyright.
Not directly, but it is possible to put conditions on the making of copies of the pages, and all people browsing the net necessarily make copies in order to do so. The issue would be whether they had managed to accomplish this and that they were even trying.
Copyright, Service Mark, Trademark, and Patent IP rights are secured by the US government. Securing your IP rights involves registering the content of your IP with the USPTO. The only copyright they cold claim on viewing the source of their code (even at the loosest reading of copyright law) would be any pages that are not in the first 10 or last 10 pages of code for each copyrighted work.
That's not really accurate.
There are federal and state copyrights; there are federal and state marks; there are federal patents (AFAIK no states offer state patents, though they could to the degree it wouldn't be preempted; probably not interesting to them, though). Registering copyrights involves the US Copyright Office, not the PTO, and the scope of protection really has nothing whatsoever to do with the amazingly stupid deposit rules they've set up of late.
IANAL, but my understanding is that copyright is very much what is sounds like. "Copy right"-- the right to copy. The HTML code is necessarily copied to your computer in order to render the page. Therefore, the copying is done. Unless you can manage to argue that viewing the HTML code constitutes an additional "copy", then there isn't any possible chance that it could be a violation of copyright.
Well, it could arguably constitute another copy, depending on how the computer works, whether you consider a computer to be a single medium or whether you treat it more granularly, with the hard drive being one medium, RAM being another, etc. But it may not matter. Normally when you view sites, and in the process, make copies, you're doing so pursuant to at least an implied license from the copyright holder who put the material on a public site intending that people view it. Here, it is possible (depending on the effectiveness of their express terms, etc.) that they're conditioning your making of that first copy on your not viewing the source. Whether their restrictive terms are effective, given how they're described (I'm thinking of Specht here) is probably of interest.
No, copyright could easily work, provided that there are copyrightable elements on the page which they hold the rights to. You're right though that merely asking people not to view the source isn't going to fly as a trade secret.
Read 17 USC 512 carefully (it's not as well-organized as one would prefer) making careful note of various cross-references, definitions (which may be in section 101 as well as 512), etc. and also take a look at the page here.
Further, I'd take a look at cases where 512 was an issue, including Napster, Ellison, and Perfect 10.
The safe harbor is useful, but it takes work to qualify for it, and it doesn't apply to everything or everyone.
1) True, but there are not really all that many major Usenet servers of this type. It won't be difficult to kill them off, much as we've seen with various commercial P2P developers (Napster, Grokster), torrent trackers, etc.
2) I wouldn't pin my hopes on it. There's a number of hurdles and I doubt that usenet.com will get over them.
3) You're thinking of 47 USC 230. It doesn't apply in copyright cases by its own language. And it is quite distinct from the idea of a common carrier (which ISPs are not) in any event.
What I should have said is a right explicitly contemplated by the constitution and subsequently granted by congress. Technically your clarification is correct, but my initial point about this being a right of content creators still stands even if it is a legislated right contemplated by the constitution rather than strictly a constitutional right.
Well, if I take your meaning correctly, in that you feel that the framers believed copyright to be a right on par with the right of free speech, then I'd still have to disagree.
First, remember that the United States predates the Constitution. Prior to the strong federal government established by the Constitution taking power, we had a government under the Articles of Confederation, in which the states had far more power than the United States did. Many of the states enacted their own copyright laws, but the laws differed in various respects, were of limited jurisdiction, and basically they made a hash out of it. Thus, the only reason that the copyright power is in the Constitution at all is because the states had demonstrated their incompetence in that field, and a uniform national approach -- whatever that would consist of, and which could well be no law at all -- was needed. That is, it was a practical matter, not the product of some lofty ideal as to authorial rights.
Second, really only Englishmen (and formerly English colonials) cared about authorial copyright at all. No one else had it at the time. And aside from a few radicals, and a large number of pernicious book publishers who were suspiciously akin to the publishers of today (MPAA, RIAA, etc.) everyone felt that the purpose of copyright was to prevent censorship and monopolies (which is what the Stationers had originally had copyrights for) and to encourage learning, the progress of knowledge, etc. We see this in the Statute of Anne, in the Battle of the Booksellers, in the state acts, in the proposals in the Constitutional Convention (where it was proposed that there be copyright laws, patent laws, and a national university, since they all had to do with the same basic idea), in the final copyright clause, and in the 1790 Act.
There is an excellent article on this subject here and I would be very pleased if you'd read it.
Sorry, but this says that congress shall secure authors the exclusive RIGHT to their respective writings. This is a right explicitly mentioned in the constitution.
You're wrong, and what's worse, you actually quoted the Constitution, yet still missed the operative language. Try harder next time.
What the Constitution says at the beginning of Art. I, 8 is "The Congress shall have power" whereupon it lists various powers, including, eventually, the copyright power you quoted. Not that Congress shall do it, just that it has and in fact, has to have, the power to do it, if it wants to do it. From the same section, Congress has the power to borrow money on the credit of the country, to declare war, to grant letters of marque and reprisal, etc. For you to have been right, it would have to be obligated to do these things constantly, which is just crazy.
Compare this to other clauses in Art. I where we find something that they actually do _have_ to do: The House of Representatives shall choose their speaker and other officers; The Vice President of the United States shall be President of the Senate; The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the office of President of the United States; When sitting [to try an impeachment], they shall be on oath or affirmation; When the President of the United States is tried, the Chief Justice shall preside; The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day and so on and so forth.
Frankly, Congress does not have to exercise the vast majority of its powers at all, or if they do, only to whatever constitutional degree they happen to feel like on a particular day. Thus, copyright is not a constitutional right. Rather, it is a right which is merely granted (or not) by laws which are passed (or not) pursuant to a power of Congress which is delegated to it by the federal Constitution.
That's no more a constitutional right than the right to receive social security payments, which is similarly only established by virtue of a law which Congress has passed pursuant to one of its powers.
Slashdot Mirror
That's enough to make it useful, which is good given that it's a utilitarian concept. That doesn't really seem to impact its morality, though, I'm afraid. If it helps though, I generally find copyright to be amoral, though the underlying foundation still isn't all that amazing in that dimension.
Also, an interesting fact: that concept was known to the classical world, but they ignored it. It was said that the inhabitants of Sybaris (a Greek colony infamous for excessive luxury) would reward chefs who invented novel and delicious recipes with a one-year patent on it, as an incentive to create them. Of course, this was just a joke people told about them, not to be taken seriously, but the idea was there.
There was a hardware bug involving the keyboard of the II which was tracked down and corrected shortly before the II was introduced at the Faire. It might have been the result of a bug in the "original design" as opposed to, say, manufacturing error, but I don't know. Perhaps someone would like to ask Woz about it? I did notice that you avoided mention of software bugs, of which there were a few.
We've got that word "limited" to deal with
Eldred pretty much took care of that, at least for CTEA. Of course, there was not an assurance that another CTEA would fare as well, at least not if there is the sort of pernicious behavior that was complained of.
and of course, no mention of the rights being transferable to Artificial Legal Entities...
Why would there be that in the Constitution? It is a very slim document (take a look at how long state constitutions are; it's the difference between a limited federal government and a plenary state government) and the clause in question is merely granting a power to Congress. Whether and how that power is exercised is up to them, aside from the handful of requirements in the Constitution.
They have to vest rights in authors. It doesn't say that the authors are to be prohibited from doing whatever they like with them later on. Given that all copyright law in existence prior to the Constitution allowed copyrights to be alienated and that even our very first federal copyright law allowed alienation, there's simply no basis for arguing that the Constitution prohibits it. Besides, it would be grossly paternalistic to second-guess authors in that regard. So long as the right is vested in them (merely for practical purposes, mind you) initially, they can do whatever they like with it, just as they would with a brick or a piece of land.
I believe you'll find that the rule against perpetuities is of English origin. The US is better known for being early in abolishing the fee tail.
Somehow, though, we've never viewed Copyright in this same light
Copyright originated from this manner of thinking. May I suggest you read this paper about the origins of copyright, particularly in the US. I enjoyed it a lot. I would also fight very hard against life+18. For some works, 15 years is far too long. A modest quantity of very short terms (e.g. 1-2 year terms which at most might be renewable up to a total of 20 years, and in some cases much less) strikes me as better given how the economics of creative works actually plays out.
Not everything is copyrighted or copyrightable; this is neither.
Fundamentally, it comes down to whether it is moral to prevent the free flow of information and creative works, including derivative works of other artists, for one's own financial benefit, or whether it is moral to try to spread those works, to preserve them by distributed effort (n.b. the libraries of antiquity did not survive; only the widespread dissemination of works got us what little we have), and to encourage and assist in the free use, enjoyment, and creation of others.
I can tolerate copyright on utilitarian grounds, but it is basically amoral, and if not that, then immoral.
The point of copyright laws is to protect the creators of them such that they have an interest in producing more of them, on the grounds that it's in the public's interest for there to be a range of songs, books etc to consume.
That's half of it, actually. The other objective of copyright law is to have as little or no copyright law as possible, on the grounds that it is in the public interest for works to be free to use and disseminate in any manner, without permission, and without cost.
So it's not good enough to just incentivize authors, you also have to craft the incentives so that you are wringing the most out of them for the least cost to the public. Plus, of course, original and derivative works are equally good, so it helps artists quite a lot for them to be able to freely use each other's works.
But I listen to a lot of contemporary classical music, for instance, and I'm not sure who's going to pay for the rehearsals and recordings of orchestras if it was legal to just copy it. Even in the case of long out of copyright works from hundreds of years ago for string quartet (ie no conductors, minimal recording technology required), if the performances aren't to be protected then what's in it for the performers to go to the effort of recording it?
Until 1971 sound recordings could not get a US copyright. So apparently, they made money anyway. There are ways to make money as an artist that don't involve copyright, you know. In fact, in some artistic fields, copyrights are pretty irrelevant. Fine artists really don't use them at all, for example, because the market is for specific copies that the artist himself made. An original Picasso is worth a lot. A print of a Picasso is worth a few dollars. And most fine artists are not famous enough to make money from the mass market anyway. Orchestras don't do a great job of supporting themselves anyway. It's the kind of thing that money gets spent on, not that makes money. Even with the strongest copyrights ever, I don't see that changing. A copyright doesn't ensure a market or profitability; it only concentrates whatever money there would be for that work anyway, and rather inefficiently at that.
But you don't support legislating against them? Why should we concede the realm of law to them? A boycott is not all that effective, but reforming the copyright laws in the public interest could do wonders.
(1) fair use is not a right backed by a law, it's a doctrine (it's essentially a recognized loophole or accepted defense),
The right is the right of free speech/press, and there is a statute regarding fair use at 17 USC 107 (though it remains a judicial doctrine, which does have the force of law in our common law system).
Fair Use cannot be encoded into a machine.
Quite true. Even the courts often have difficulty with it.
Copyright application is really quite simple.
The moment anything is published it is copyrighted. Its about prior art, establishing it.
No, the moment any copyrightable work is created, it is copyrighted. Publication is no longer a factor, though it really ought to be as it is extremely wasteful to have unpublished copyrighted works. (A modicum of protection for a work which is created, unpublished, but which is soon going to be published is tolerable, as we don't really want to encourage piracy of manuscripts where authorized publication is about to happen. But it should be weak and short-lived protection, to encourage authors to publish as fast as possible.)
Also, prior art is a patent concept. It is irrelevant in copyright, which has no novelty or nonobviousness requirements.
Architecture is a Useful Art.
Brittney Spears is Not.
You've got that backwards, actually. Patents deal with the useful arts, while copyrights deal with science. Remember, the Constitution was written in the late 18th century, and the English language is one which changes quite a lot. In the English of the day, science simply meant knowledge, while the useful arts meant applied technology. You can look this up in the OED, which is great in that it provides historical definitions of words, and not just modern ones. There are some remnants of these old meanings left, too, e.g. technology being state of the art, patent law dealing with prior art or persons having ordinary skill in the art.
But mostly it is evident from the structure of the clause itself. The clause reads:
That is, it goes science/useful arts, then authors/inventors, then writings/discoveries. The first in each pair deals with copyright (science, authors, writings) and the last with patents (useful arts, inventors, discoveries).
Plus of course, in the actual laws, you'll find that what we normally call patents with regard to inventions are really a branch of patents called utility patents (because they must be useful; cf. plant patents and design patents). Utility is a key issue for patentability, and it's the reason why perpetual motion machines are not patentable: they don't work, and therefore lack usefulness. In copyright law, OTOH, some sorts of works are made non-copyrightable if they are useful. For example, in the Brandir case, the person who created those oscillating tube bike racks tried to get a copyright on them, claiming they were sculptures. Because of the utility doctrine, he was denied.
This is also why, until extremely recently, architectural works were not copyrightable. They only have become so due to pressure from outside the US. Given that copyrights don't seem to incentivize architects to design or erect buildings, but do discourage the public from freely making use of those buildings' forms, it is in fact a very bad idea to allow architectural copyrights, and it's one of the things that will need to go on the chopping block as reforms are instituted. Architects might be artists of a sort, but that alone is not a justification for giving them copyrights.
As for Ms. Spears, she is crappy, but the framers would have no problem with her works being copyrightable (other than music not having been copyrightable subject matter regardless of who did it until a little later). Copyright does not involve judgments of artistic merit. We don't want the government doing that, since it is so bad at it. Better to let the market decide, what with art being subjective. And better to structure copyright in such a way that flops tend to enter the public domain rapidly since even the artist will likely stop caring soon enough, by means of things like requiring registration, frequent short-duration renewal terms, short overall terms, etc.
Well, civil and criminal infringement are pretty different, so I don't think that Grokster would be a useful precedent for a criminal infringement case. This is not to say that there might not be some other statute or precedent which is relevant, but you're going to find it in the realm of criminal law, not copyright law.
With regard to copyright, there is a statute of limitations, and I suppose an equitable argument could be made, e.g. laches, given the right circumstances. But that really only works on specific infringements, and wouldn't affect the copyright as against anyone else.
The idea is that the kernel will have to shrink considerably in order to allow MS to cram in more DRM features -- both to keep people from pirating Windows, and as part of their ambitious program of colluding with the RIAA, MPAA, et al. There is not a guarantee that the smaller kernel will be able to do as much as at present, just more efficiently; it'll lose functionality. But they're betting that no one will notice since everything you do will have to be vetted by someone else who would generally prefer it if you didn't. (In order to reflect the long wait, the hourglass will change to a calendar)
First, you're off base about the bases for a EULA. You don't need much for them to be possible.
Second, I don't think that that's what they're actually doing. Whenever anyone puts anything up on the web for the public to look at, they are, by their conduct, granting an implied license to the public to make such copies as are necessary for those pages to be looked at. Otherwise it would be illegal to look at web pages which had been put up lawfully, which would be an absurd outcome. Note that it is copyright infringement on the part of the person browsing the web to even so much as look at an infringing web page, since that person is making more copies of it. There has been at least one case to this effect, possibly more.
Here, rather than use that normal implied license, they are trying to use an express license which still seems to grant users that right, but specifically denies them the right to look at the source of those copies. Since this license is the only source of your right to make the copies into RAM, cache, etc. that you have to make in order to view the page at all, you still need to accept. The issue is whether solely their express license is in effect, or if they've bollixed it up and the implied license could still be used as an alternative.
And of course, you could always argue fair use if you did something not permitted under either license, but that's always a bit of a gamble, since any use could be a fair use or not, depending on the specific circumstances.
Yes, but as I understand the matter, there is a _direct exception_ in US copyright law that allows making temporary copies for the purpose of viewing material.
There is not. The best you could get would be fair use, and whether or not a specific use is fair or not will always depend on the circumstances involved.
What I mean is, how can they put conditions on your right to make a copy of a publicly available page being cached on your own computer for viewing?
If it wasn't licensed, you wouldn't be able to lawfully look at the web pages to begin with, due to the ever-annoying consequences of MAI v. Peak. This is why I don't like it when people concentrate on term length as if that was the only problem with copyright; among (many, many) other things, we'll also need better exceptions for incidental copies made by computers and probably a higher mens rea standard for infringement.
Alternatively, you could argue fair use for whatever you're doing outside the boundary of the routine implied license for materials authorizedly published on the net. It's not a difficult argument, really, so long as you're not doing anything noteworthy with the web page (e.g. changing the text and republishing it). But it's still sad that we've allowed things to get so bad that this would even be an issue.
Further, how can they expect you to be bound by a license that you haven't agreed to?
Agreement can be inferred from conduct in some cases. Consider the GPL: it's not as though you have to send a letter to the FSF or anyone indicating that you're accepting the terms of the license. Where the license deviates from the norm, however -- as here, with its unusual express terms -- then we probably get into Specht territory where those terms probably will be difficult to apply... though Specht partially depends on not knowing about those terms, so the publicity isn't really helping any of us.
Can you restrict the use of a copy with copyright? My understanding was that you couldn't.
You can't. That's the Bobbs-Merrill case from which the first sale doctrine originates. But there are ways to restrict the use of a copy by other means. The keys are what the use consists of, and access to the work. If the work is published, then you've lost control of access to it, and can only control certain limited uses by means of copyright (e.g. making a new copy). When the copyright dies, so does that portion of your control. If access to a specific copy in your control is needed, then you can condition that access on the acceptance of binding terms. This can be a part of a sale, or lending, etc. Whether doing this in every case in order to avoid the future possibility of a work being published and effectively being in the public domain is against public policy is an interesting issue, but until there's an actual conflict, it's moot.
Further, I've read that there's been a legal precedent set with software that, since their use implies caching to RAM, that form of "copying" does not require a license to copy.
You've got that backwards. Copying a copyrighted work into RAM, even for caching, is infringing, barring authorization, an applicable exception, etc. That's the MAI v. Peak case; it's worth a read, as is the Intellectual Reserve v. Utah Lighthouse Ministry case which is the logical outcome of that precedent.
Selling the first copy of software carries the implied right to install the software on your hard drive and cache it in RAM, and those copies don't require a license.
Is that not true?
That is also true. There is an exception at 17 USC 117 which lets the owners of a copy of a computer program make copies and adaptations freely in order to run it and to back it up. But it only applies to software, and only to people who own a copy (which naturally raises the issue of EULAs, and how they interact with 117). So it doesn't seem to be much use here. As I said, a broader exception for computers is needed. So are some other reforms.
I said it was possible. I didn't say that this particular example (which I haven't taken a close look at anyway) would qualify. Indeed, based on the descriptions here, I think it wouldn't manage to accomplish whatever it is that is intended.
copyright could be used to prevent copying and distribution of the source, but viewing the source would not be protected by copyright.
Not directly, but it is possible to put conditions on the making of copies of the pages, and all people browsing the net necessarily make copies in order to do so. The issue would be whether they had managed to accomplish this and that they were even trying.
Copyright, Service Mark, Trademark, and Patent IP rights are secured by the US government. Securing your IP rights involves registering the content of your IP with the USPTO. The only copyright they cold claim on viewing the source of their code (even at the loosest reading of copyright law) would be any pages that are not in the first 10 or last 10 pages of code for each copyrighted work.
That's not really accurate.
There are federal and state copyrights; there are federal and state marks; there are federal patents (AFAIK no states offer state patents, though they could to the degree it wouldn't be preempted; probably not interesting to them, though). Registering copyrights involves the US Copyright Office, not the PTO, and the scope of protection really has nothing whatsoever to do with the amazingly stupid deposit rules they've set up of late.
IANAL, but my understanding is that copyright is very much what is sounds like. "Copy right"-- the right to copy. The HTML code is necessarily copied to your computer in order to render the page. Therefore, the copying is done. Unless you can manage to argue that viewing the HTML code constitutes an additional "copy", then there isn't any possible chance that it could be a violation of copyright.
Well, it could arguably constitute another copy, depending on how the computer works, whether you consider a computer to be a single medium or whether you treat it more granularly, with the hard drive being one medium, RAM being another, etc. But it may not matter. Normally when you view sites, and in the process, make copies, you're doing so pursuant to at least an implied license from the copyright holder who put the material on a public site intending that people view it. Here, it is possible (depending on the effectiveness of their express terms, etc.) that they're conditioning your making of that first copy on your not viewing the source. Whether their restrictive terms are effective, given how they're described (I'm thinking of Specht here) is probably of interest.
No, copyright could easily work, provided that there are copyrightable elements on the page which they hold the rights to. You're right though that merely asking people not to view the source isn't going to fly as a trade secret.
So, how far does this go?
Read 17 USC 512 carefully (it's not as well-organized as one would prefer) making careful note of various cross-references, definitions (which may be in section 101 as well as 512), etc. and also take a look at the page here.
Further, I'd take a look at cases where 512 was an issue, including Napster, Ellison, and Perfect 10.
The safe harbor is useful, but it takes work to qualify for it, and it doesn't apply to everything or everyone.
In response to your points:
1) True, but there are not really all that many major Usenet servers of this type. It won't be difficult to kill them off, much as we've seen with various commercial P2P developers (Napster, Grokster), torrent trackers, etc.
2) I wouldn't pin my hopes on it. There's a number of hurdles and I doubt that usenet.com will get over them.
3) You're thinking of 47 USC 230. It doesn't apply in copyright cases by its own language. And it is quite distinct from the idea of a common carrier (which ISPs are not) in any event.
What I should have said is a right explicitly contemplated by the constitution and subsequently granted by congress. Technically your clarification is correct, but my initial point about this being a right of content creators still stands even if it is a legislated right contemplated by the constitution rather than strictly a constitutional right.
Well, if I take your meaning correctly, in that you feel that the framers believed copyright to be a right on par with the right of free speech, then I'd still have to disagree.
First, remember that the United States predates the Constitution. Prior to the strong federal government established by the Constitution taking power, we had a government under the Articles of Confederation, in which the states had far more power than the United States did. Many of the states enacted their own copyright laws, but the laws differed in various respects, were of limited jurisdiction, and basically they made a hash out of it. Thus, the only reason that the copyright power is in the Constitution at all is because the states had demonstrated their incompetence in that field, and a uniform national approach -- whatever that would consist of, and which could well be no law at all -- was needed. That is, it was a practical matter, not the product of some lofty ideal as to authorial rights.
Second, really only Englishmen (and formerly English colonials) cared about authorial copyright at all. No one else had it at the time. And aside from a few radicals, and a large number of pernicious book publishers who were suspiciously akin to the publishers of today (MPAA, RIAA, etc.) everyone felt that the purpose of copyright was to prevent censorship and monopolies (which is what the Stationers had originally had copyrights for) and to encourage learning, the progress of knowledge, etc. We see this in the Statute of Anne, in the Battle of the Booksellers, in the state acts, in the proposals in the Constitutional Convention (where it was proposed that there be copyright laws, patent laws, and a national university, since they all had to do with the same basic idea), in the final copyright clause, and in the 1790 Act.
There is an excellent article on this subject here and I would be very pleased if you'd read it.
Sorry, but this says that congress shall secure authors the exclusive RIGHT to their respective writings. This is a right explicitly mentioned in the constitution.
You're wrong, and what's worse, you actually quoted the Constitution, yet still missed the operative language. Try harder next time.
What the Constitution says at the beginning of Art. I, 8 is "The Congress shall have power" whereupon it lists various powers, including, eventually, the copyright power you quoted. Not that Congress shall do it, just that it has and in fact, has to have, the power to do it, if it wants to do it. From the same section, Congress has the power to borrow money on the credit of the country, to declare war, to grant letters of marque and reprisal, etc. For you to have been right, it would have to be obligated to do these things constantly, which is just crazy.
Compare this to other clauses in Art. I where we find something that they actually do _have_ to do: The House of Representatives shall choose their speaker and other officers; The Vice President of the United States shall be President of the Senate; The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the office of President of the United States; When sitting [to try an impeachment], they shall be on oath or affirmation; When the President of the United States is tried, the Chief Justice shall preside; The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day and so on and so forth.
Frankly, Congress does not have to exercise the vast majority of its powers at all, or if they do, only to whatever constitutional degree they happen to feel like on a particular day. Thus, copyright is not a constitutional right. Rather, it is a right which is merely granted (or not) by laws which are passed (or not) pursuant to a power of Congress which is delegated to it by the federal Constitution.
That's no more a constitutional right than the right to receive social security payments, which is similarly only established by virtue of a law which Congress has passed pursuant to one of its powers.