Um, a bill titled "The Digital Millenium Copyright Act" (see "Section 1: Short Title") doesn't automatically come under the Copyright Clause?
Of course it is in Title 17. Of course, Congress might try to rely upon its authority under the Patent and Copyright clause for the power to pass it.
Of course it matters not one whit as to its constitutionality whether DMCA would qualify under the clause "to promote progress."
Congress has a list of powers in Article I. They are not mutually exclusive. If a bill does not satisfy one of those powers, it can still pass a law if it falls under another clause.
DMCA passes muster under the Commerce Clause, which is what the Congress relied upon for its passage. It therefore doesn't matter whether it promotes progress, at least with respect to its constitutionality.
The corporate shield provides limited liability for shareholders, but no immunity from criminal responsibility for individual acts of officers or employees. (Indeed, in many cases, an individual can be deemed liable for intentional torts committed by or in the name of the corporation. This is why the corporate officers are so often named in trademark and trade secret misappropriation cases).
The example you gave, where a corporate officer is held criminally responsible for financial misdeeds of the company, is in fact quite common.
Further, even if an individual didn't perform all of the acts necessary to commit a crime, there can be criminal responsibility nevertheless for conspiracy or attempt. All that is necessary for conspiracy is a joint agreement that the crime be committed and a single act in furtherance of the conspiracy. Every member of a conspiracy is guilty of the crime as though they were a principal.
Well, sort of. It is rare, although perfectly legal, for a jury to, for example, decide that the law under which a defendent is being tried is unjust and therefore refuse to convict. This principle upholds the ancient right of a democratic people to return to themselves the power and authority they may have temporarily granted to others. This right is fundamental to democracy and violation of this right directly leads to armed rebellion and insurrection, as governments always seem to forget sooner or later.
Jury nullification is neither a right nor legal. To willfully ignore the facts and to refuse to uphold the law is a violation of a law taken under oath.
The poster is quite correct, however, that a jury's acquittal is unreviewable and cannot be set aside. No inquiry may be made, and no reprisals can be taken against the jury. This is not to protect any right of the jurors, but rather that of the Defendant - double jeopardy.
Thus, the poster has confused lawfulness with the ability of the state to enforce it. This is very similar to the mistake made by DMCA supporters, that the DMCA is right, and Sklyarov is evil because the law is enforceable.
DMCA is Malum prohibutum, not Malum in se. It is wrong only because it is prohibited, it is not prohibited because it is wrong.
This argument is losing (and its one that lost in the DeCSS case, as a matter of fact -- wasn't even raised on appeal).
In particular, DeCSS doesn't need to rely on the Patent and Copyright Clause to remain valid law even if it didn't promote the sciences and the useful arts -- it would suffice if the statute regulated interstate commerce (the Commerce Clause, also Section 8).
Indeed, the proponents of DMCA made precisely this argument: "we can't put a fair use provision into this statute because if we did, it would be treated under the Copyright Clause."
At any rate, The conclusion in your argument is unfounded on the fallacious presumption that merely proving a failure to promote progress would suffice.
. . . that jury nullification would be possible? Indeed, are you so certain that after a brief statement by each side, that a majority of non-technical people would even disapprove of DMCA?
Lookie, when a few lawyers and civil rights types were screaming against the DMCA, it was very difficult even to get a whimper out of the technical community. The subtleties of the legal issues were too obscure even for a savvy technical community to get hepped up about until they saw its consequences.
And now that this is the law, do you really think that the American people are going to rise up because of the arrest of one russian hacker?
Felton was a far better case to get on CNN. This case actually makes the few Congressmen who are looking to change the law's job harder, not easier.
However much I agree with you, the analogy holds no water whatsoever, apart from both individuals being arrested for violations of a crime.
The crime Rosa Parks violated was unconstitutional in violation of the Fourteenth Amendment because, had a similarly situtated white woman been there, it would not have been a crime.
The DMCA's constitutionality is undisputed, except as applied in the Felton case (suing over a threatened lawsuit, not an actual judgment under the DMCA) and the DeCSS injunction (suing over the overly expansive LANGUAGE of an injunction order, not the DMCA in itself).
DMCA is wrong -- its bad policy. There are certainly theorists who argue that even distribution of executable object code is free speech (Professor Junger, for example). But hey, there's a huge difference between these highly theoretical arguments and the blatant 14th Amendment egregiousness that infected the South in the 60s.
There is a reason that the American public ultimately got behind the civil rights movement -- they understood that it was wrong and why it was wrong. I have yet to poll a newbie without loading up the questions to find someone who "gets it."
This is not to say that killing the anticircumvention provisions of DMCA is not a righteous cause -- its that the present incarceration of a Russian Hacker is so far from a Rosa Parks scenario that you are simply deluding yourself.
I didn't say successfully sue. Yes there can be reasons that it won't get to court, however you can still file the papers, as it were.
My point was, in response the the original post I replied to, that persons do have recourse against bogus claims.
You can always file papers. Paper doesn't refuse ink.
In this case, by the way, EFF filed papers. RIAA filed a motion to dismiss -- which is to say that RIAA is asserting that it is EFF's claim that is bogus. Take this motion seriously.
you can sue if the threatening of suit causes damages. Which it did.
As a lawyer who has practiced in this arena quite a bit, I'll leave it at this: the truth is much more interesting.
Yes, a threat of a lawsuit may give rise to a cause of action for DJ jurisdiction. But (1) there isn't always jurisdiction unless certain facts can be proved; and (2) even when you can prove them, the District Court needn't take the case.
All I am saying is this: the the motion seriously. RIAA has a fair chance of kicking this case out of court for lack of jurisdiction without further adjudication.
- That serious damage was already done, since the paper wasn't presented at the conference it was supposed to
That would be helpful, had the action been filed before the conference was over. RIAA will argue, persuasively to a court, I think, that apparently, nobody thought the threat important enough to sue about it at the time.
It's very obvious to all, that what happens is, that the EFF calls the RIAA's bluff, but the EFFs lawyers used a lot of language to point out why this is necessary.
RIAA's point here is that Professor Felton did not call the bluff. No injunction was in place -- he was free to give his speech or to file an action for an emergency injunction at the time. Instead, he waited -- this is the sort of thing for which there are a zillion cases saying "No DJ jurisdiction."
I'm not saying RIAA is in the right. Just that there is a fair chance the District Court will find this motion persuasive unless EFF manifests substantial evidence that there is likelihood RIAA will subsequently seek to sue Felton for publishing.
This, of course, has nothing to do with the abstention doctrine. The issue in Roe, to which you refer, was the fact that no woman who wanted an abortion, but could not, could sue for DJ, since her pregnancy would have been terminated (one way or the other) long before a petition for cert could be filed. The "capability of repetition, yet evading review" issue has nothing to do with RIAA's motion to dismiss.
Ihe EFF have stated that the lawsuit will not be withdrawn even if the RIAA binds themselves not to sue Felton. No matter what the RIAA and Verant do, the EFF can still sue the DOJ because of the threat of criminal penalties (not chimerical).
You appear to misunderstand the import of a Motion to Dismiss. RIAA is not asking EFF to withdraw its suit, it is asking the Court to kick EFF out of court.
And what I am saying is that they have a case. It is a rare circumstance that you will be permitted to sue me to resolve possible lawsuits I might file against you but have not filed (this is what EFF is suing for -- resolution of an unfiled lawsuit, or a "Declaratory Judgment").
Courts typically eschew resolving disputes when there is no dispute. RIAA messed up big, no doubt, but their statement that they have no intention to sue, if credited by the Court, is sufficient to permit dismissal.
Why? You can't sue because you are merely apprehensive of being sued under a statute. Unless you are affirmatively fearful that the other side intends to sue, and they are refraining from suit as a tactic to get the benefit of the threat without risking adjudication, a Court is free to refrain from taking up the cause.
No doubt, EFF will do a job in this case, hitting RIAA over the head with their rather amazing history of conduct, and perhaps raising the criminal risk card from Las Vegas. But so far, these facts still look 50-50 in terms of going forward in an action for a declaratory judgment.
Now, I'd expect EFF to offer RIAA to dismiss if they sign a general release and consent to publish the article -- thus, RIAA would have to concede, or look bad before the Court.
But these guys are all represented by awesome lawyers. It will be very interesting to watch what they do.
There's no room for small companies to do big things anymore," said Michael Robertson, MP3.com's 34-year-old CEO.
Sorry, there was little innovative in Michael's contributions, just as there was little innovative in Napster. Both contributed a bunch of technology, and found themselves in a great place and time to ride the wave of some network effects.
This is not innovation. Both MP3 and Napster skipped quite a few steps in their race to market to position themselves to blow their competitors away. In doing so, legitimate uses of the internet and p2p for distributing good content was set back a decade or so, and it will take quite awhile until the Courts can set aright what these people (and their far uglier counterparts at RIAA) have set asunder.
Their contribution was not in content, the artists provided that. Their contribution was not in data format and technology, many others contributed that. Their contribution, if anything, was exploiting the opportunities of these technologies and content and beating others to market by stomping over rights of others.
Eventually, they paid. Unfortunately, hard cases make bad law, and the courts wielded a too-blunt instrument to slam down what they perceived to be a wrongdoing in view of the public policies stated by the Congress.
Don't get me wrong -- no lawyer I know is more critical than I of both the MP3 and Napster decisions, particularly the analysis at the District Court level. Those courts stomped on something, no doubt.
But they didn't stomp on Napster and MP3's innovations. Just their business models.
work the problem, don't make it worse by guessing
on
IANAL
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· Score: 3
Real people who come to real lawyers are facing real problems. Serious problems. Hard problems. Before they came with a question, they had already run the gamut of what was available.
The merits of the advice offered by this child can be encapsulated in a brief coloquy from the article:
"Where do you find books about the law?" I asked.
"I don't," he said, tap-tap-tapping away on his keyboard. "Books are boring. I don't like reading."
So you go on legal Web sites?"
"No."
"Well, when you got one of these questions did you research your answer?"
"No, never. I just know it."
"You just know it."
"Exactly."
Doh! Yeah, that's the kind of advice a client needs -- someone who "just knows it." Very useful when he's right. Very dangerous when he's wrong.
Like most professionals, a lawyer is useful not for their routine practice, but for their capacity to identify when a non-routine issue arises, and the ability to solve that problem (complete with research from scratch where necessary).
Whether or not the law should be simple, it is not. Whether or not someone should suffer for technical, even hypertechnical, subtleties, under the law, they will. This 15 year old may provide entertainment, but little sound advice.
No doubt he does a fair imitation of a lawyer fielding trivial questions -- but the lack of sophistication of the answers makes it clear that the advice he gives is of the most dangerous kind -- the advice of someone with a little knowledge.
Reference was made earlier to the Nolo press books, the best of which are of sound quality. The difference between the 15 year-old's advice, is that many of these nolo books were written by lawyers and understated their advice, frequently advising where were the limits of their simple advice -- with strong suggestions to contact a lawyer facing a difficult problem.
These games clearly chewed off WAY more than they could, attempting to simultaneously manage a game, a story a communications facility and an overwhelmingly highly representational and large-scale graphical simulation product.
Why are these products failing where their text-only counterparts held so much promise?
Duh! The text-only counterparts focused on what they could do, and did those things as well as they could.
The key to gamemastering multi-player gaming is to get the hell out of the way and to let the players entertain one another. It is why the dumb-as-dirt games such as Diplomacy are so hot in terms of game-playing experience.
The game isn't important if you let the people do what people do best. Formation and breakup of coalitions in a dynamic environment is one of the most exciting things humans do. And its breathtaking fun, win or lose, so long as the stakes are manageable. Get the hell out of the way, and your players will love you, thinking you designed a magnificent game, even where the underlying game is no cleverer than rock-paper-scissors.
Facilitate interaction and providing for growth in such an environment without crunching the first rule is challenge enough, and this is what separated the adults from the kiddies in the text-only game designs. This was among the hardest game design problems of our generation, although very few people noticed, and those who solved it left seminal clues how game designs should move on to the future.
But what happened to single-platform RPGs next happened to their multi-player counterparts: graphic heat. Computers, finally capable of meaningful representational graphics and real-time interaction with graphical worlds brought more numbers, to be sure, to play those games. But the question is really, for how many did the attraction to these games "stick?" (After all, it is the long-term fees, not the package price that holds the greatest commercial promise for MOLRPG.)
Stuck in a world of their own choosing, the game players left because the game sucked. The best gamemasters left because the game could not be game mastered, and the interaction suffered because of the inherent limitations of the (albeit awesome) technology in permitting the kinds of growth and management necessary to make it work.
NOONE TO DATE has understood the separation of concerns necessary to make these products work. In my (here's my "old fart" credentials) past, the single most amazing games were the multi-player and outrageously distracting, but awesomely simple in comparison, games on the PLATO system. Nothing before or since has captured, at least, my passions for the game as did these. And it is because it did everything well, rather than trying to do all of everything now. The graphics and game designs were modest, the interaction was suited to the game and communities lived well.
Someday, someone will do this right. But not for awhile, regrettably, given the publisher's misreading of the market and their concommitant propensities to do things the wrong way. It comes from trying to do these games as concept products: Doom on a large scale, and so forth.
Some things don't scale. You need the vision first, and then exercise sound design and engineering techniques to implement this under the guise of a competent director.
Unfortunately, these products are producer-driven, not director-driven. Until they figure it out, these products will be doomed to (at least critical, if not commercial) failure.
If you say so -- I'm fairly certain of my position nevertheless. In any case, it is plain beyond cavil, clear as can be: use of software under ordinary circumstances constitutes an exercise of the replication right. Therefore, use without consent constitutes copyright infringement.
Nothing you have suggested militates to the contrary.
I don't make up the law here, or argue with you what the law should be. I read the statutes and cases and today I am here to say -- this
*IS* what the law *IS*.
As to your "counterexamples," nobody has yet attempted to make the argument to the court that the residual physiological and electronic images taken by an observer from a book constitutes an actionable act of copying. I imagine they would be giggled out of existence, notwithstanding the point you are making.
As to playing a CD, you bet. If you purchased or lawfully obtained possession of a copy, you will be fine by implied or actual license. If I make a copy of the CD, I commit infringement by replication; if I give it to you as a birthday present, I commit infringement by distribution. So far you are clean. Put it in your CD player and hit play, and guess what? You're a prospective defendant.
A vast number of people have been sold ersatz copies of pirated software, many of whom have had no knowledge that the original-looking boxes, labels and pirates certificates and stamps were entirely counterfeit. Guess what? They are all guilty of infringement, a strict liability offense.
You don't have to like this, but make no mistake: this is undoubtedly the way that it is.
No legal action could ever arise because the license states that you may freely run the software. Thus, you have a license. If it did not, you would not have any intrinsic right to do so.
I *also* through the courts upheld that "incidental copies" were legal.
As noted, if by incidental copies you mean copies made loading and execution of the program, no. The MAI and Southeastern cases have settled this question quite clearly.
If by incidental copies you mean copies made for archival or adapting to new hardware purposes, this first requires that you own a lawful copy. Many licenses expressly state that you obtain a license only, with title to the copy remaining with the licensor precisely for that reason. Section 117.
This is absolutely not true. Under United States law you do not need a "license" to use a program that you have obtained legitimately.
Of course it is true. Using a program without consent, to the extent that such use entails copying from disk to RAM, is copyright infringement. Two exemplary Circuit Court cases are MAI v. Peak Computering and Triad v. Southeastern. I'd be pleased to provide references on request, but you can probably find what you need to know using Google.
Furthermore, you have the right to transfer
or to sell that copy (First Sale doctrine). What copyright restricts is the ability to make extra copies for distribution.
Section 109 does not provide a right to use. See the cases above.
Right in theory, but you overestimate a jury's capacity to see possession of a "hacker tool" as a salutary and ordinary thing, such as holding a kitchen knife.
Again, the issue is whether possession of the contraband will be deemed by an average juror to evidence an intent to use it. (It will, 99-100% of the time.) Then, whether the juror will understand *and* buy the testimony from experts suggesting that one doesn't use hacker tools only to hack evil, or buy or be confused by the clueless prosecutor who represents the state.
Then, weigh whether you are willing to risk your freedom and liberty to discover the answer, or accept a plea and do whatever the state requests.
The "GPL is a distribution license" is a tired distinction as well. Under the copyright act, you may not replicate, distribute or make derivative works. Courts have long held that the loading of a program from disk to ram for execution constitutes exercise of the replication right.
If you had no grant of any right to use, you would be violating copyright just as surely as if you distributed without consent.
Of course, GPL *DOES* state that "The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program)," so you are perfectly OK.
But this is because you have been granted a license to copy the software, at least to the extent necessary to run it.
Dude, take some valium and pull your head out of your ass. . . . Leave the law to the lawyers, because if you, timothy and taco got together and worked real hard on it, you'd be able to understand enough of it to get yourselves laughed out of court.
I may indeed have my head up my ass, but I also have the law degree and techno-litigation experience you seem to require. If you have an argument on the merits, feel free to show where you think I was mistaken, and we shall see who is making the frivolous argument. But until you do, why not leave the name-calling to yourself?
Slashdot Mirror
And there it is. A non-monopoly may engage in a broader scope of anticompetitive behavior to its advantage than can a monopoly.
Microsoft's evils have now come home to roost. I rather love listening to them whine about how "tough" it is in the fast lane. . .
Um, a bill titled "The Digital Millenium Copyright Act" (see "Section 1: Short Title") doesn't automatically come under the Copyright Clause?
Of course it is in Title 17. Of course, Congress might try to rely upon its authority under the Patent and Copyright clause for the power to pass it.
Of course it matters not one whit as to its constitutionality whether DMCA would qualify under the clause "to promote progress."
Congress has a list of powers in Article I. They are not mutually exclusive. If a bill does not satisfy one of those powers, it can still pass a law if it falls under another clause.
DMCA passes muster under the Commerce Clause, which is what the Congress relied upon for its passage. It therefore doesn't matter whether it promotes progress, at least with respect to its constitutionality.
Read the cases. Eventually, you'll get it.
The corporate shield provides limited liability for shareholders, but no immunity from criminal responsibility for individual acts of officers or employees. (Indeed, in many cases, an individual can be deemed liable for intentional torts committed by or in the name of the corporation. This is why the corporate officers are so often named in trademark and trade secret misappropriation cases).
The example you gave, where a corporate officer is held criminally responsible for financial misdeeds of the company, is in fact quite common.
Further, even if an individual didn't perform all of the acts necessary to commit a crime, there can be criminal responsibility nevertheless for conspiracy or attempt. All that is necessary for conspiracy is a joint agreement that the crime be committed and a single act in furtherance of the conspiracy. Every member of a conspiracy is guilty of the crime as though they were a principal.
Well, sort of. It is rare, although perfectly legal, for a jury to, for example, decide that the law under which a defendent is being tried is unjust and therefore refuse to convict. This principle upholds the ancient right of a democratic people to return to themselves the power and authority they may have temporarily granted to others. This right is fundamental to democracy and violation of this right directly leads to armed rebellion and insurrection, as governments always seem to forget sooner or later.
Jury nullification is neither a right nor legal. To willfully ignore the facts and to refuse to uphold the law is a violation of a law taken under oath.
The poster is quite correct, however, that a jury's acquittal is unreviewable and cannot be set aside. No inquiry may be made, and no reprisals can be taken against the jury. This is not to protect any right of the jurors, but rather that of the Defendant - double jeopardy.
Thus, the poster has confused lawfulness with the ability of the state to enforce it. This is very similar to the mistake made by DMCA supporters, that the DMCA is right, and Sklyarov is evil because the law is enforceable.
DMCA is Malum prohibutum, not Malum in se. It is wrong only because it is prohibited, it is not prohibited because it is wrong.
This argument is losing (and its one that lost in the DeCSS case, as a matter of fact -- wasn't even raised on appeal).
In particular, DeCSS doesn't need to rely on the Patent and Copyright Clause to remain valid law even if it didn't promote the sciences and the useful arts -- it would suffice if the statute regulated interstate commerce (the Commerce Clause, also Section 8).
Indeed, the proponents of DMCA made precisely this argument: "we can't put a fair use provision into this statute because if we did, it would be treated under the Copyright Clause."
At any rate, The conclusion in your argument is unfounded on the fallacious presumption that merely proving a failure to promote progress would suffice.
. . . that jury nullification would be possible? Indeed, are you so certain that after a brief statement by each side, that a majority of non-technical people would even disapprove of DMCA?
Lookie, when a few lawyers and civil rights types were screaming against the DMCA, it was very difficult even to get a whimper out of the technical community. The subtleties of the legal issues were too obscure even for a savvy technical community to get hepped up about until they saw its consequences.
And now that this is the law, do you really think that the American people are going to rise up because of the arrest of one russian hacker?
Felton was a far better case to get on CNN. This case actually makes the few Congressmen who are looking to change the law's job harder, not easier.
However much I agree with you, the analogy holds no water whatsoever, apart from both individuals being arrested for violations of a crime.
The crime Rosa Parks violated was unconstitutional in violation of the Fourteenth Amendment because, had a similarly situtated white woman been there, it would not have been a crime.
The DMCA's constitutionality is undisputed, except as applied in the Felton case (suing over a threatened lawsuit, not an actual judgment under the DMCA) and the DeCSS injunction (suing over the overly expansive LANGUAGE of an injunction order, not the DMCA in itself).
DMCA is wrong -- its bad policy. There are certainly theorists who argue that even distribution of executable object code is free speech (Professor Junger, for example). But hey, there's a huge difference between these highly theoretical arguments and the blatant 14th Amendment egregiousness that infected the South in the 60s.
There is a reason that the American public ultimately got behind the civil rights movement -- they understood that it was wrong and why it was wrong. I have yet to poll a newbie without loading up the questions to find someone who "gets it."
This is not to say that killing the anticircumvention provisions of DMCA is not a righteous cause -- its that the present incarceration of a Russian Hacker is so far from a Rosa Parks scenario that you are simply deluding yourself.
I didn't say successfully sue. Yes there can be reasons that it won't get to court, however you can still file the papers, as it were.
My point was, in response the the original post I replied to, that persons do have recourse against bogus claims.
You can always file papers. Paper doesn't refuse ink.
In this case, by the way, EFF filed papers. RIAA filed a motion to dismiss -- which is to say that RIAA is asserting that it is EFF's claim that is bogus. Take this motion seriously.
you can sue if the threatening of suit causes damages. Which it did.
As a lawyer who has practiced in this arena quite a bit, I'll leave it at this: the truth is much more interesting.
Yes, a threat of a lawsuit may give rise to a cause of action for DJ jurisdiction. But (1) there isn't always jurisdiction unless certain facts can be proved; and (2) even when you can prove them, the District Court needn't take the case.
All I am saying is this: the the motion seriously. RIAA has a fair chance of kicking this case out of court for lack of jurisdiction without further adjudication.
- That serious damage was already done, since the paper wasn't presented at the conference it was supposed to
That would be helpful, had the action been filed before the conference was over. RIAA will argue, persuasively to a court, I think, that apparently, nobody thought the threat important enough to sue about it at the time.
It's very obvious to all, that what happens is, that the EFF calls the RIAA's bluff, but the EFFs lawyers used a lot of language to point out why this is necessary.
RIAA's point here is that Professor Felton did not call the bluff. No injunction was in place -- he was free to give his speech or to file an action for an emergency injunction at the time. Instead, he waited -- this is the sort of thing for which there are a zillion cases saying "No DJ jurisdiction."
I'm not saying RIAA is in the right. Just that there is a fair chance the District Court will find this motion persuasive unless EFF manifests substantial evidence that there is likelihood RIAA will subsequently seek to sue Felton for publishing.
This, of course, has nothing to do with the abstention doctrine. The issue in Roe, to which you refer, was the fact that no woman who wanted an abortion, but could not, could sue for DJ, since her pregnancy would have been terminated (one way or the other) long before a petition for cert could be filed. The "capability of repetition, yet evading review" issue has nothing to do with RIAA's motion to dismiss.
Ihe EFF have stated that the lawsuit will not be withdrawn even if the RIAA binds themselves not to sue Felton. No matter what the RIAA and Verant do, the EFF can still sue the DOJ because of the threat of criminal penalties (not chimerical).
You appear to misunderstand the import of a Motion to Dismiss. RIAA is not asking EFF to withdraw its suit, it is asking the Court to kick EFF out of court.
And what I am saying is that they have a case. It is a rare circumstance that you will be permitted to sue me to resolve possible lawsuits I might file against you but have not filed (this is what EFF is suing for -- resolution of an unfiled lawsuit, or a "Declaratory Judgment").
Courts typically eschew resolving disputes when there is no dispute. RIAA messed up big, no doubt, but their statement that they have no intention to sue, if credited by the Court, is sufficient to permit dismissal.
Why? You can't sue because you are merely apprehensive of being sued under a statute. Unless you are affirmatively fearful that the other side intends to sue, and they are refraining from suit as a tactic to get the benefit of the threat without risking adjudication, a Court is free to refrain from taking up the cause.
No doubt, EFF will do a job in this case, hitting RIAA over the head with their rather amazing history of conduct, and perhaps raising the criminal risk card from Las Vegas. But so far, these facts still look 50-50 in terms of going forward in an action for a declaratory judgment.
Now, I'd expect EFF to offer RIAA to dismiss if they sign a general release and consent to publish the article -- thus, RIAA would have to concede, or look bad before the Court.
But these guys are all represented by awesome lawyers. It will be very interesting to watch what they do.
There's no room for small companies to do big things anymore," said Michael Robertson, MP3.com's 34-year-old CEO.
Sorry, there was little innovative in Michael's contributions, just as there was little innovative in Napster. Both contributed a bunch of technology, and found themselves in a great place and time to ride the wave of some network effects.
This is not innovation. Both MP3 and Napster skipped quite a few steps in their race to market to position themselves to blow their competitors away. In doing so, legitimate uses of the internet and p2p for distributing good content was set back a decade or so, and it will take quite awhile until the Courts can set aright what these people (and their far uglier counterparts at RIAA) have set asunder.
Their contribution was not in content, the artists provided that. Their contribution was not in data format and technology, many others contributed that. Their contribution, if anything, was exploiting the opportunities of these technologies and content and beating others to market by stomping over rights of others.
Eventually, they paid. Unfortunately, hard cases make bad law, and the courts wielded a too-blunt instrument to slam down what they perceived to be a wrongdoing in view of the public policies stated by the Congress.
Don't get me wrong -- no lawyer I know is more critical than I of both the MP3 and Napster decisions, particularly the analysis at the District Court level. Those courts stomped on something, no doubt.
But they didn't stomp on Napster and MP3's innovations. Just their business models.
Real people who come to real lawyers are facing real problems. Serious problems. Hard problems. Before they came with a question, they had already run the gamut of what was available.
The merits of the advice offered by this child can be encapsulated in a brief coloquy from the article:
"Where do you find books about the law?" I asked.
"I don't," he said, tap-tap-tapping away on his keyboard. "Books are boring. I don't like reading."
So you go on legal Web sites?"
"No."
"Well, when you got one of these questions did you research your answer?"
"No, never. I just know it."
"You just know it."
"Exactly."
Doh! Yeah, that's the kind of advice a client needs -- someone who "just knows it." Very useful when he's right. Very dangerous when he's wrong.
Like most professionals, a lawyer is useful not for their routine practice, but for their capacity to identify when a non-routine issue arises, and the ability to solve that problem (complete with research from scratch where necessary).
Whether or not the law should be simple, it is not. Whether or not someone should suffer for technical, even hypertechnical, subtleties, under the law, they will. This 15 year old may provide entertainment, but little sound advice.
No doubt he does a fair imitation of a lawyer fielding trivial questions -- but the lack of sophistication of the answers makes it clear that the advice he gives is of the most dangerous kind -- the advice of someone with a little knowledge.
Reference was made earlier to the Nolo press books, the best of which are of sound quality. The difference between the 15 year-old's advice, is that many of these nolo books were written by lawyers and understated their advice, frequently advising where were the limits of their simple advice -- with strong suggestions to contact a lawyer facing a difficult problem.
These games clearly chewed off WAY more than they could, attempting to simultaneously manage a game, a story a communications facility and an overwhelmingly highly representational and large-scale graphical simulation product.
Why are these products failing where their text-only counterparts held so much promise?
Duh! The text-only counterparts focused on what they could do, and did those things as well as they could.
The key to gamemastering multi-player gaming is to get the hell out of the way and to let the players entertain one another. It is why the dumb-as-dirt games such as Diplomacy are so hot in terms of game-playing experience.
The game isn't important if you let the people do what people do best. Formation and breakup of coalitions in a dynamic environment is one of the most exciting things humans do. And its breathtaking fun, win or lose, so long as the stakes are manageable. Get the hell out of the way, and your players will love you, thinking you designed a magnificent game, even where the underlying game is no cleverer than rock-paper-scissors.
Facilitate interaction and providing for growth in such an environment without crunching the first rule is challenge enough, and this is what separated the adults from the kiddies in the text-only game designs. This was among the hardest game design problems of our generation, although very few people noticed, and those who solved it left seminal clues how game designs should move on to the future.
But what happened to single-platform RPGs next happened to their multi-player counterparts: graphic heat. Computers, finally capable of meaningful representational graphics and real-time interaction with graphical worlds brought more numbers, to be sure, to play those games. But the question is really, for how many did the attraction to these games "stick?" (After all, it is the long-term fees, not the package price that holds the greatest commercial promise for MOLRPG.)
Stuck in a world of their own choosing, the game players left because the game sucked. The best gamemasters left because the game could not be game mastered, and the interaction suffered because of the inherent limitations of the (albeit awesome) technology in permitting the kinds of growth and management necessary to make it work.
NOONE TO DATE has understood the separation of concerns necessary to make these products work. In my (here's my "old fart" credentials) past, the single most amazing games were the multi-player and outrageously distracting, but awesomely simple in comparison, games on the PLATO system. Nothing before or since has captured, at least, my passions for the game as did these. And it is because it did everything well, rather than trying to do all of everything now. The graphics and game designs were modest, the interaction was suited to the game and communities lived well.
Someday, someone will do this right. But not for awhile, regrettably, given the publisher's misreading of the market and their concommitant propensities to do things the wrong way. It comes from trying to do these games as concept products: Doom on a large scale, and so forth.
Some things don't scale. You need the vision first, and then exercise sound design and engineering techniques to implement this under the guise of a competent director.
Unfortunately, these products are producer-driven, not director-driven. Until they figure it out, these products will be doomed to (at least critical, if not commercial) failure.
If you say so -- I'm fairly certain of my position nevertheless. In any case, it is plain beyond cavil, clear as can be: use of software under ordinary circumstances constitutes an exercise of the replication right. Therefore, use without consent constitutes copyright infringement.
Nothing you have suggested militates to the contrary.
I don't make up the law here, or argue with you what the law should be. I read the statutes and cases and today I am here to say -- this
*IS* what the law *IS*.
As to your "counterexamples," nobody has yet attempted to make the argument to the court that the residual physiological and electronic images taken by an observer from a book constitutes an actionable act of copying. I imagine they would be giggled out of existence, notwithstanding the point you are making.
As to playing a CD, you bet. If you purchased or lawfully obtained possession of a copy, you will be fine by implied or actual license. If I make a copy of the CD, I commit infringement by replication; if I give it to you as a birthday present, I commit infringement by distribution. So far you are clean. Put it in your CD player and hit play, and guess what? You're a prospective defendant.
A vast number of people have been sold ersatz copies of pirated software, many of whom have had no knowledge that the original-looking boxes, labels and pirates certificates and stamps were entirely counterfeit. Guess what? They are all guilty of infringement, a strict liability offense.
You don't have to like this, but make no mistake: this is undoubtedly the way that it is.
So I guess we're in more trouble than I originally thought. :(
That's all I'm saying. If we make possession of hacker tools illegal, only criminals will have rootkits.
No legal action could ever arise because the license states that you may freely run the software. Thus, you have a license. If it did not, you would not have any intrinsic right to do so.
I *also* through the courts upheld that "incidental copies" were legal.
As noted, if by incidental copies you mean copies made loading and execution of the program, no. The MAI and Southeastern cases have settled this question quite clearly.
If by incidental copies you mean copies made for archival or adapting to new hardware purposes, this first requires that you own a lawful copy. Many licenses expressly state that you obtain a license only, with title to the copy remaining with the licensor precisely for that reason. Section 117.
This is absolutely not true. Under United States law you do not need a "license" to use a program that you have obtained legitimately.
Of course it is true. Using a program without consent, to the extent that such use entails copying from disk to RAM, is copyright infringement. Two exemplary Circuit Court cases are MAI v. Peak Computering and Triad v. Southeastern. I'd be pleased to provide references on request, but you can probably find what you need to know using Google.
Furthermore, you have the right to transfer
or to sell that copy (First Sale doctrine). What copyright restricts is the ability to make extra copies for distribution.
Section 109 does not provide a right to use. See the cases above.
Right in theory, but you overestimate a jury's capacity to see possession of a "hacker tool" as a salutary and ordinary thing, such as holding a kitchen knife.
Again, the issue is whether possession of the contraband will be deemed by an average juror to evidence an intent to use it. (It will, 99-100% of the time.) Then, whether the juror will understand *and* buy the testimony from experts suggesting that one doesn't use hacker tools only to hack evil, or buy or be confused by the clueless prosecutor who represents the state.
Then, weigh whether you are willing to risk your freedom and liberty to discover the answer, or accept a plea and do whatever the state requests.
The "GPL is a distribution license" is a tired distinction as well. Under the copyright act, you may not replicate, distribute or make derivative works. Courts have long held that the loading of a program from disk to ram for execution constitutes exercise of the replication right.
If you had no grant of any right to use, you would be violating copyright just as surely as if you distributed without consent.
Of course, GPL *DOES* state that "The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program)," so you are perfectly OK.
But this is because you have been granted a license to copy the software, at least to the extent necessary to run it.
Dude, take some valium and pull your head out of your ass. . . . Leave the law to the lawyers, because if you, timothy and taco got together and worked real hard on it, you'd be able to understand enough of it to get yourselves laughed out of court.
I may indeed have my head up my ass, but I also have the law degree and techno-litigation experience you seem to require. If you have an argument on the merits, feel free to show where you think I was mistaken, and we shall see who is making the frivolous argument. But until you do, why not leave the name-calling to yourself?