I can think of many reasons why I would require students to use a single environment, particularly when teaching an OO language. Some of these include:
(1) so the professor can distribute lines of code and libraries for all to use in projects;
(2) to assure that code may be tested directly and automatically against testbed code; (the single worst part of graduate school for me, was the process of grading computer programs);
The argument about the Betamax standard is irrelevant because the judge did not outlaw Napster.
Nothing could be further from the truth, legally speaking. The Betamax standard here is EVERYTHING -- the single strongest legal reed upon which Napster has relied.
The issue here is not whether a given person infringes when he or she obtains a free copy of a work he or she has never purchased is infringing. In that situation, it is highly likely that the conduct *IS* infringing.
The point is whether Napster can be held liable for that infringement under a theory of contribution, given that Napster itself never directly violated anybody's copyright -- it neither reproduces nor distributes anything protected under the Copyright Act.
And the standard for determining whether a person can be contributorily liable when there exists an actual infringement is not solely based upon whether there was an actual infringement, but whether the alleged contributor contributed something that could ONLY be used for infringing.
Under Sony, if the Napster is "merely capable of substantial noninfringing use," Napster must prevail -- even if most of the users are, in fact, actually infringing at the time of trial.
Far from irrelevant, the Sony case will probably tbe he most significant issue on appeal.
In such a forum, your opponents do you a favor each and every time they overreach. When they misstate the facts, particularly in so relevant and material a manner, they discredit themselves.
And in such a scenario, credibility is EVERYTHING.
When my opponents misstate the truth, they open avenues I never had before, and give me ways to win even when I have lost. Indeed, when you have a strong case, this is the greatest risk: learning to constrain yourself from overreaching.
This is cause for cheer. Relax, and look forward to reading the reply brief.
The Ninth Circuit will not soon forget (and Mr. Boies went to great length in his brief to remind them) that the last time they ruled in favor of an IP provider (the Sony Betamax case) using a standard along the lines of a "most frequent present use" test, the Supreme Court spanked them, noting that the standard was that the product "merely be capable of a substantial non-infringing use."
The problem is that the Napster defense is a primarily hypertechnical one, albeit an important one, that does not appeal to the "hearts" of the judiciary. The benefit of having amicus briefs filed on behalf of defendants from enterprises raises more important policy issues -- which will go far to give the three-judge panel a more balanced and critical view of the respective positions of the parties.
Then, hopefully, they will re-read Sony, avoid remaking the mistake they made a dozen or so years ago when they last took on a contributory infringement case of this kind, apply the appropriate rule, and reverse.
It seems odd that certain places require a bit too much information from you before they will even do business. What information do you think is fair for Web sites to posess on an individual, and how far do current e-Commerce sites cross that line?
The marketplace will decide what is fair. Enlightened businesses are coming around, and unenlightened businesses are creating opportunities for competitors and new entrants.
My suggestion is simply not to do business with those who require what, in your view, is too much, and instead do business with their competitors -- even if the competitors are slightly more costly with which to deal.
Like all statistics, they are often interesting and provocative, but are almost never sufficient to judge which of several applications would be best for a particular application.
Monty's reference to "lies" and deceit in his article are troublesome and uncollegial -- while there was certainly a goodly amount of gloating in one press release, I would have been far more impressed with an impassive, nuts and bolts, criticism of the ANSI benchmarks than the unfortunate essay here.
One thing for which I have found Benchmarks useful is to prove concept -- that the application can, at least, run the Benchmark.
In this regard, there is one benchmark that I find quite persusasive at the moment: MySQL generates zero --that's 0.000- transactions per second. It is my hope that they will soon turn to implementing this important feature, so that we may then compare apples to apples.
Magistrates are NOT Article III Judges, and are appointed for limited terms. They do not issue Orders that are binding, but Reports and Recommendations that, unless challenged, are typically rubber stamped by District Court Judges.
The point you make, though, is quite accurate -- since Marbury v. Madison, it has been quite clear that judicial review may occur at any level in the Article III Judiciary. The confidence Article III judges have comes, in large part, from their lifetime tenure -- arguably extant for precisely that purpose.
But don't get too hepped up by the trial court's remarks suggesting First Amendment limitations to the DMCA -- I have frequently seen judges intending to rule one way to begin by making statements suggesting he/she was leaning the other -- if only to seem more judicious.
This may be particularly true here, where the judge has been asked to recuse himself on grounds of conflicts of interest and an allegedly strong prejudice against the defendants.
Ultimately, issues like this are interesting, but entirely beside the point. Neither the Congress nor the states are empowered (unless 2/3 of each house and 3/5 of the state legislatures feel otherwise) to limit speech. Period. That's the deal. If the legislation is based on the CONTENT of the message, which it must be to distinguish UCE from other e-mail, then it can only be passed under applicable standards if (by clear and convincing evidence):
(1) there is a compelling governmental interest to justify the regulation; and
(2) there exists no less interusive means by which the interest can be satisfied.
I think even if you can show (1), you have some difficulties with (2). There are plenty of less invasive means by which UCE can be regulated, particularly given government intrusion.
Again, isn't it interesting how the First Amendment absolutists on Slashdot suddenly become mute where it is THEIR petard upon which they are hoisted. I do not defend spam -- I hate it. But just as I defend free speech, I recognize that any regulation of a message based upon the contents of the message must be handled in manner consistent with constitutional sensibility.
And with all due respect, the fact that Spam costs you when you leave an open channel to the world just doesn't cut it. I agree that its true, and I agree that, in a manner of speaking, its egregious. So what? "No law" meant "no law," not "laws that are sensible, or consistent with the consensus of those who do not want to get the speech."
Free speech inconveniences those who do not want to hear it. That's the way of things. It is the nature of first Amendment litigation that the Constitution is most sorely tested by the least attractive candidates: Pornographers, Nazis, Flag Burners and Spammers. That these people are useless slag and a cost to society is beside the point entirely -- they are not made free to speak because it serves our interests to hear them. They are made free to speak so that we can also hear the voices of those geniuses among us who actually do have something to offer.
What is particularly nuts about this colloquy is that there is a way to regulate Spam that is free of cost as well as cosntitutional infirmity. Why defend a clearly unconstitutional law (or one that will at least be unenforceable for the three to five earth-years and decades of web-years it takes to make it to the Supreme Court) when a clearly constitutional alternative exists that will have the same, or nearly the same, effect?
A no-brainer by my reckoning. Stop yielding moral high ground to censors by rationalizing away the First Amendment in the case of spam. Get behind the constitutional alternatives, get the result you actually want, and then have the best of both worlds.
There is a huge difference, legally and otherwise, between Napster, which is merely a cataloguer and arbiter of content distributed by others, and a server providing copies of copyrighted materials.
From a legal standpoint, the server *IS* a direct infringer of the copyright, by distributing copies of the roms. 17 U.S.C. s. 106. This was never true of Napster, where the complaint doesn't even allege direct infringement.
Moreover, the number of people who can claim to be time- or space- shifting for their copy of a coin-op video game can be counted on the hands and toes in my immediate family. Thus, Napster's primary defenses would not apply to these other situations.
There is not other way to spin it: the "ROM sites" are direct piracy sites, no more and no less.
These remarks would not, of course, apply to a file sharing service along the lines of Napster -- although those who copy content for which they are not space shifting would themselves be direct infringers, even if the file sharing services were not.
However, lawyers will be on this like flies on honey. The best profit margin that a lawyer can have is on a class action suit, and this has to be one of the easiest ones for them to find claimants. Lawyers will make a bit of money, and if we're really lucky they'll litigate the spammers into non-existence.
That is, of course, the point. One could make the statute a criminal matter, enforced by the government. But then, the burden of proof would have to be "beyond a reasonable doubt," and the government would have to spend substantal resources to catch them. By having "private district attorneys" litigating these matters, the government doesn't need to get involved, yet the regulation is effectively enforced, at least in part.
The downside is that such actions will have little impact on "judgment-proof" spammers with little resources, or perhaps at most a house (protected by homestead) and a few computers with an internet link. There is no benefit to class-action lawyers in terms of money, and the incentive to enforce is lost. For this reason, the Spam bill needs to be followed-up with criminal penalties as well. (While a judgment proof person may not be afraid of losing a few chattels (indeed, might not even answer the complaint and simply move on after a default judgment is entered), many do value their liberty.)
However, in any case, the bill has to be written carefully to avoid First Amendment issues. And, as noted in a separate message, legislation of this type passed by a State may well be unconstitutional, in view of what happened in Washington State.
Spam costs the recipiants money, there is no First Amendment protection which allows you to advertise to someone while costing them money at the same time.
Playing devil's advocate here (I agree with the sentiment), I doubt language like this would find its way into a court opinion. Your television and cable services cost you money. Your telephone services cost you money. Indeed, your mailbox cost you money to maintain.
The issue depends closely how a particlar bill is crafted. Compelled speech (label your e-mail in a particular way) or prohibited speech can give rise to a First Amendment claim. (While I agree there are arguments to be made on both sides, I have always found it interesting how we Slashdotters tend to be First Amendment Absolutists on some issues and non-constitutionalists on others . ..)
There is already some jurisprudence on the subject, but nothing is likely to be settled (given the commerce clause issue), until the federal government gets into the act.
There *IS*, of course, a way to regulate spam that doesn't involve a content-based speech regulation: make it unlawful to misrepresent, whether by X-MAIL tag or otherwise, the manner with which e-mail was distributed. (There is an unassailable first amendment constitutional exception for regulation of false statements.)
Once this is done, we can modify our e-mail clients to include a tag, perhaps something like
X-DIST: 100 10
to mean "this e-mail has not been sent, either in identical or substantially similar form, to more than 100 people who have not previously subscribed for such e-mail in the past 10 days, whether by the sender of this message, or persons in privity with them." Or something like that.
Now, we can filter spam just fine -- and slam those who misrepresent (if you can catch them) with whatever book you care to throw at them -- and all without implicating the First.
It may well be that only federal legislation can resolve this problem. Washington State's anti-spam legislation was recently held unconstitutional on the ground that states may not regulate the flow of spam, in that doing so is unduly restrictive of interstate commerce in violation of Article I, Section 8 of the Constitution.
While another court may have a different view, there is precedent that seems indistinguishable in the present case.
And even if federal legislation is passed, there remains the outstanding First Amendment questions. Soon to be seen at an appellate court near you . . .
A fellow named Forte promoted a music classification system based on "tone vectors" during the late 70s and early 80s. While useful, in some people's view, for classifying atonal music, the sytem had an interesting side-effect.
All major modes and all minor modes were classified by the same vector. According to Forte, most western music was the same.
It has always been Napster's view that the law is on their side. As a lawyer, I'm more likely to buy the hypertechnical defenses on behalf of Napster, but hey, that's just me. The District Court was moved by the "hey, they're taking everything for free" rhetoric, and the few cracks of light they could pull out of Sony.
Time will tell how the 9th Circuit feels about the matter. In the meanwhile, I didn't see anything really new in this brief at first glance.
Look, its like this. News stories always have errors -- sometimes minor, sometimes fundamental. News is written by generalists who gather information on very tight deadlines. Their job is to capture the gist of stuff and get it "out there" before their competition.
They try, but they never get it right.
Take this from a guy who's given a zillion interviews -- I don't even cringe anymore -- I just wonder WHAT they'll get wrong.
So, here's the deal -- the news guys got it wrong. Tell them the truth, and move on. Get over it.
There's nothing you can do about the media -- they're consitutionally bullet-proof so long as they didn't know it was a lie. And that's the way it should be. You WANT THEM to rush with what feels like a scoop. YOU NEED THEM to do that.
Just don't give them shit when they mess up. They're only doing their job.
RIAA need no longer grease radiostations, who in turn also collect from advertisers, but can get music in my ears at lower cost to them, so RIAA can vend their services and related IP products. By artbitraging the chain of distribution, the market is helped on both sides. It is true that the poor radio stations will suffer somewhat, for this devalues the amount they can charge for ads, but so what?
Cybergold does this in a slightly different way, yes, but its the same notion -- the net makes it possible to broker our attention, a commidity for which *WE* can now charge, so that relevant product gets into our hands more and more cheaply, and we are compensated for the inconvenience of previewing products in which we have no interest.
Me paying them to listen to their music? Are they kidding? Why should I listen to some new piece of crap, when I can hear it on the radio for free?
I expect new market economies to go the other way -- RIAA will have to pay *ME* (as they presently do pay radio stations) to audition streams of their new offerings.
Ultimately, serious market models will have artists (and not big label enterprises) bidding for mindshare, indeed, perhaps paying *US* to listen to samples of their offerings. Those that are great will rise to the top, and then they can charge us for performances, other services and perhaps recordings of that and their later works should we decide we want to hear it upon demand.
I think cobalt is both too soon and too late to claim ownership of the notion of "cube" for a geometric shape.
While they may be ok for Qube, spelled with a Q, they have a long way to go to complain about likelihood of confusion over the use of "Cube" to describe a cube.
Remember, Sting just lost a domain name claim for the word Sting.
Having the sources to exploits makes it easier for administrators and system engineers to measure the degree of risk posed by a particular exploit, and the extent to which a work-around has succeeded.
Truth to tell, there is no other way of telling for sure (particularly for DoS hacks) whether you have reasonably addressed a particular problem. (It is not, of course, sufficient to do such testing, but it is often quite helpful if not necessary).
The purpose of the Boycott is to take the moral high ground while making a serious statement to RIAA. It is critical that the boycotters are unpaintable as frustrated whining pirates who lost their favorite toys.
Thus, don't use the word boycott in the same breath as you discuss other alternatives to Napster. It sounds as though you are saying, "hey, I wasn't willing to steal content before --I was buing CD's just as I was sharing them-- but I'll do it now."
While that is another tack -- the guerilla "you can't touch me" approach -- it is inconsistent with, IMHO, the point of a boycott -- to expose a bad for what it is, while making your own point.
By all means boycott if you can get a signficant market force together, but while doing so, DO NOT "share" the content you are boycotting. Don't listen to it at all -- protest and picket at live performances by artists who don't come out against RIAA's position, and listen to free music from artists who do come out.
It may not be as much fun at Dance parties, but hey -- if it is a matter of principle, let's stand by our princples.
But this is more than keeping cash while listening to someone else's music -- so don't prove the RIAA's point for them. Turn away from "big music" in favor of local talent, or talent that takes a "new view." Encourage local radio stations to do so as well.
This would make a difference, and it would also make a point.
Guerilla tactics might work --and they might not work: but you are simply inviting more warfare and litigation. In case you hadn't noticed, that's fighting RIAA in a forum in which they are powerfully equipped.
Far better to fight the fights elsewhere:
(1) hit them in their pockets by not buying (and by not using) their products; make sure the local distributors of these products hear, politely but loud and clear, how you feel about these.
(2) get active -- write congressmen and senators -- do it now, and keep doing it.
(3) stay alert and educated -- there are sound, cogent arguments in support of your position, but many resort instead to pabulum and the language of "underground piracy". That will kill your position in the long run -- you need not only to mobilize those who agree with you, but also to convince those who do not hold fixed and strong positions on these matters.
I, for one, am a strong IP advocate. If anyone would have held a fixed position on these issues, it would have been me -- but I listened and heard the sound, solid arguments in support of Napster, and was "turned." Other smart people can be turned as well -- but not if all they are hearing is pabulum from both sides.
The idea is to have the activists who care active, and the people who don't pissed off at the other side.
For my part, I'm not buying RIAA CD's, but neither will I be using the alternative music sharing servers so long as the injunction is in place. I will be writing and advocating the virtues of the Napster position before the Congress and at every public opportunity, and assailing the arrogance and weaknesses of RIAA's position, while acknowledging their right to protect IP at the same time.
In the meanwhile, trust the system to get this right in the end. They did in Sony and they did in Diamond -- in time, so too will they do so with Napster. At the same time, watch out for the Congress, who can change the law with a word -- make sure it costs any Congressman or Senator in this election period to take the "big media" position -- MAKE IT AN ISSUE.
This morning, Vice-Presidential candidate Cheney was asked about Napster. He begged off, saying he didn't know much about it. This can't be permitted to happen.
Make it a grass roots political issue -- try to get someone in Congress to pass a limitation to exclusive rights expressly permitting space-shifting as a form of fair use or otherwise.
You can make it happen, if you have the right and the will to do so. Do you?
Collaborative webs are old news
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Geek Flavor
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· Score: 5
Ward Cunningham designed the first such web site of which I am aware (called a Wiki, or a Wiki-Wiki) several years ago. Co-webs have been in use for quite some time, though they tend to be somewhat more sophisticated than a mere place to dump ftp -- usually providing editors and "smart" pre-parsers to facilitate collaboration by newbies.'
Despite the skepticism, these things work very well and are rarely the subject of abuse. A sandbox is provided for people who just want to play, and folks are generally quite courteous as a matter of practice. We use one for the Squeak Smalltalk open source community, which you can access from the main (traditional) web site page for Squeak.. The Swiki is one of the primary repositories of information for the Squeak community.
We have found cowebs an excellent vehicle for collaboratively creating documentation for open source projects that have run too long without doco support.. While it is not a great place to build final documents, it is a great place to gather information, and over time mold into the same.
In view of the nature of this matter, the alleged facts of a prior representation of Time-Warner, if true, make the conflict of interest clear. If they are as reported, Judge K should recuse himself as a matter of course.
But things are rarely what they seem -- reporting of technical legal matters, as with technical technical matters, in my experience, is rarely accurate.
Nah, Magneto could have sacrificed himself!
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Slashdot Meets X-Men
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I think the screenwriters addressed that carefully when they gave W the line, I can't remember exactly what he said, in response to Magneto's statement that he was sacrificing one for the good of all. I think the line was something to the effect of, "if you were so concerned for the benefit of all, it would be YOU operating the machine."
A careful view of the screenplay paints M as only evil. The entire plot line of the film depends upon it. Had Magneto made the self-serving, if misguided, effort to change the world himself (sacrificing his life to do so), he might well have succeeded -- he was able to hide his throughts and location from view. Instead, he conspires to get W, as a vehicle to get R, and thereby invoke the wrath and intervention of the Xavier school cabal.
Were M not evil and self-concerned, the screenplay would have to be much more introspective (and there would be no reason for W and R to be part of it).
No, I see it (from the Movie point of view), that this is a good mutant-bad mutant thing. No tragic anti-hero, M. He could have been, I agree -- but not in this screenplay.
In view of the competing interests and liabilities of the ISP, it is probably pragmatically necessary for the ISP to maintain as comprehensive a set of logs as possible.
Whatever policy is adopted, a breach of ethics would not arise from the maintenance of logs, but rather from the failure to inform customers that such logs are being maintained. By informing the customers, each customer is on notice to take steps to assure the security of any information sent in the clear or over the wire.
Many problems, not one solution
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Pirate DNS?
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While I agree that the present primacy of NSI over.com,.org and.edu raises several problems, it is important to note from where NSI obtains its authority, and seat the blame appropriately. This solution may work itself out in time, once there is a non-NSI infrastructure capable of picking up the registry slack. Outfits like register.com are proof that sound competition is possible.
Now the trademark issues do not derive from NSI itself (although certainly some of them do), but from the tradmark laws, really stupid special-purpose legislation (the cybersquatting bill) and from limitations of the technology itself. Eliminating NSI from the mix would change none of these things.
The fact of the matter is that it is unlawful to use a mark in violation of trademark laws. Mere registration is not, by itself, an infringement, subsequent use of that registration will be. It doesn't matter who is registrar for the domain names -- the lawsuits will ensue. The anticybersquatter act further ensures this.
The problem is not with the law, either. Trademark law has developed reasonably over the centuries, and can readily cater to plural persons being able to use the identical mark. (ABC for a TV network, an unrelated pizza chain, an unrelated chain of liquor stores and countless garages and other small businesses; AAA for everything, and Acme for everything).
The difficulty derives from the fact that unlike a telephone listing, a domain name is unique. This doesn't have to be, although it is very convenient to have it be so, and technology could evolve, and maybe should evolve to permit plural acme.com's. See, e.g., an old white paper I wrote about five years ago on possible alternatives.
But the bottom line is this: NSI overreaches regularly, only because they can. They can only because NSF lets them, which it does because no one else was ready to step up to bat last time it was time to renew a contract. This is changing as we speak. And competitive registrars will probably intervene to protect their territory and prevent further overreaching, at least to some extent.
I see no reason to believe that another registrar, however well-meaning, will be better or worse than the status quo, absent a uniform set of black-and-white rules enforced by a meaningful authority.
Anarchy will make the problem worse, much worse, and not any better. Further, fear of the consequences of such anarchy will preclude the necessary critical mass to build to make the new top level domains possible.
I think we should rely on, and exploit, existing processes to hold NSI in check. This requires some patience, and perhaps the creation of some new technologies, but it can work. Other solutions proposed thus far seem only to introduce new problems, and probably no real new benefits.
Slashdot Mirror
I can think of many reasons why I would require students to use a single environment, particularly when teaching an OO language. Some of these include:
(1) so the professor can distribute lines of code and libraries for all to use in projects;
(2) to assure that code may be tested directly and automatically against testbed code; (the single worst part of graduate school for me, was the process of grading computer programs);
(3) to facilitate group programming projects.
The argument about the Betamax standard is irrelevant because the judge did not outlaw Napster.
Nothing could be further from the truth, legally speaking. The Betamax standard here is EVERYTHING -- the single strongest legal reed upon which Napster has relied.
The issue here is not whether a given person infringes when he or she obtains a free copy of a work he or she has never purchased is infringing. In that situation, it is highly likely that the conduct *IS* infringing.
The point is whether Napster can be held liable for that infringement under a theory of contribution, given that Napster itself never directly violated anybody's copyright -- it neither reproduces nor distributes anything protected under the Copyright Act.
And the standard for determining whether a person can be contributorily liable when there exists an actual infringement is not solely based upon whether there was an actual infringement, but whether the alleged contributor contributed something that could ONLY be used for infringing.
Under Sony, if the Napster is "merely capable of substantial noninfringing use," Napster must prevail -- even if most of the users are, in fact, actually infringing at the time of trial.
Far from irrelevant, the Sony case will probably tbe he most significant issue on appeal.
In such a forum, your opponents do you a favor each and every time they overreach. When they misstate the facts, particularly in so relevant and material a manner, they discredit themselves.
And in such a scenario, credibility is EVERYTHING.
When my opponents misstate the truth, they open avenues I never had before, and give me ways to win even when I have lost. Indeed, when you have a strong case, this is the greatest risk: learning to constrain yourself from overreaching.
This is cause for cheer. Relax, and look forward to reading the reply brief.
The Ninth Circuit will not soon forget (and Mr. Boies went to great length in his brief to remind them) that the last time they ruled in favor of an IP provider (the Sony Betamax case) using a standard along the lines of a "most frequent present use" test, the Supreme Court spanked them, noting that the standard was that the product "merely be capable of a substantial non-infringing use."
The problem is that the Napster defense is a primarily hypertechnical one, albeit an important one, that does not appeal to the "hearts" of the judiciary. The benefit of having amicus briefs filed on behalf of defendants from enterprises raises more important policy issues -- which will go far to give the three-judge panel a more balanced and critical view of the respective positions of the parties.
Then, hopefully, they will re-read Sony, avoid remaking the mistake they made a dozen or so years ago when they last took on a contributory infringement case of this kind, apply the appropriate rule, and reverse.
It seems odd that certain places require a bit too much information from you before they will even do business. What information do you think is fair for Web sites to posess on an individual, and how far do current e-Commerce sites cross that line?
The marketplace will decide what is fair. Enlightened businesses are coming around, and unenlightened businesses are creating opportunities for competitors and new entrants.
My suggestion is simply not to do business with those who require what, in your view, is too much, and instead do business with their competitors -- even if the competitors are slightly more costly with which to deal.
Like all statistics, they are often interesting and provocative, but are almost never sufficient to judge which of several applications would be best for a particular application.
Monty's reference to "lies" and deceit in his article are troublesome and uncollegial -- while there was certainly a goodly amount of gloating in one press release, I would have been far more impressed with an impassive, nuts and bolts, criticism of the ANSI benchmarks than the unfortunate essay here.
One thing for which I have found Benchmarks useful is to prove concept -- that the application can, at least, run the Benchmark.
In this regard, there is one benchmark that I find quite persusasive at the moment: MySQL generates zero --that's 0.000- transactions per second. It is my hope that they will soon turn to implementing this important feature, so that we may then compare apples to apples.
Magistrates are NOT Article III Judges, and are appointed for limited terms. They do not issue Orders that are binding, but Reports and Recommendations that, unless challenged, are typically rubber stamped by District Court Judges.
The point you make, though, is quite accurate -- since Marbury v. Madison, it has been quite clear that judicial review may occur at any level in the Article III Judiciary. The confidence Article III judges have comes, in large part, from their lifetime tenure -- arguably extant for precisely that purpose.
But don't get too hepped up by the trial court's remarks suggesting First Amendment limitations to the DMCA -- I have frequently seen judges intending to rule one way to begin by making statements suggesting he/she was leaning the other -- if only to seem more judicious.
This may be particularly true here, where the judge has been asked to recuse himself on grounds of conflicts of interest and an allegedly strong prejudice against the defendants.
Time will tell what word will come.
Ultimately, issues like this are interesting, but entirely beside the point. Neither the Congress nor the states are empowered (unless 2/3 of each house and 3/5 of the state legislatures feel otherwise) to limit speech. Period. That's the deal. If the legislation is based on the CONTENT of the message, which it must be to distinguish UCE from other e-mail, then it can only be passed under applicable standards if (by clear and convincing evidence):
(1) there is a compelling governmental interest to justify the regulation; and
(2) there exists no less interusive means by which the interest can be satisfied.
I think even if you can show (1), you have some difficulties with (2). There are plenty of less invasive means by which UCE can be regulated, particularly given government intrusion.
Again, isn't it interesting how the First Amendment absolutists on Slashdot suddenly become mute where it is THEIR petard upon which they are hoisted. I do not defend spam -- I hate it. But just as I defend free speech, I recognize that any regulation of a message based upon the contents of the message must be handled in manner consistent with constitutional sensibility.
And with all due respect, the fact that Spam costs you when you leave an open channel to the world just doesn't cut it. I agree that its true, and I agree that, in a manner of speaking, its egregious. So what? "No law" meant "no law," not "laws that are sensible, or consistent with the consensus of those who do not want to get the speech."
Free speech inconveniences those who do not want to hear it. That's the way of things. It is the nature of first Amendment litigation that the Constitution is most sorely tested by the least attractive candidates: Pornographers, Nazis, Flag Burners and Spammers. That these people are useless slag and a cost to society is beside the point entirely -- they are not made free to speak because it serves our interests to hear them. They are made free to speak so that we can also hear the voices of those geniuses among us who actually do have something to offer.
What is particularly nuts about this colloquy is that there is a way to regulate Spam that is free of cost as well as cosntitutional infirmity. Why defend a clearly unconstitutional law (or one that will at least be unenforceable for the three to five earth-years and decades of web-years it takes to make it to the Supreme Court) when a clearly constitutional alternative exists that will have the same, or nearly the same, effect?
A no-brainer by my reckoning. Stop yielding moral high ground to censors by rationalizing away the First Amendment in the case of spam. Get behind the constitutional alternatives, get the result you actually want, and then have the best of both worlds.
There is a huge difference, legally and otherwise, between Napster, which is merely a cataloguer and arbiter of content distributed by others, and a server providing copies of copyrighted materials.
From a legal standpoint, the server *IS* a direct infringer of the copyright, by distributing copies of the roms. 17 U.S.C. s. 106. This was never true of Napster, where the complaint doesn't even allege direct infringement.
Moreover, the number of people who can claim to be time- or space- shifting for their copy of a coin-op video game can be counted on the hands and toes in my immediate family. Thus, Napster's primary defenses would not apply to these other situations.
There is not other way to spin it: the "ROM sites" are direct piracy sites, no more and no less.
These remarks would not, of course, apply to a file sharing service along the lines of Napster -- although those who copy content for which they are not space shifting would themselves be direct infringers, even if the file sharing services were not.
However, lawyers will be on this like flies on honey. The best profit margin that a lawyer can have is on a class action suit, and this has to be one of the easiest ones for them to find claimants. Lawyers will make a bit of money, and if we're really lucky they'll litigate the spammers into non-existence.
That is, of course, the point. One could make the statute a criminal matter, enforced by the government. But then, the burden of proof would have to be "beyond a reasonable doubt," and the government would have to spend substantal resources to catch them. By having "private district attorneys" litigating these matters, the government doesn't need to get involved, yet the regulation is effectively enforced, at least in part.
The downside is that such actions will have little impact on "judgment-proof" spammers with little resources, or perhaps at most a house (protected by homestead) and a few computers with an internet link. There is no benefit to class-action lawyers in terms of money, and the incentive to enforce is lost. For this reason, the Spam bill needs to be followed-up with criminal penalties as well. (While a judgment proof person may not be afraid of losing a few chattels (indeed, might not even answer the complaint and simply move on after a default judgment is entered), many do value their liberty.)
However, in any case, the bill has to be written carefully to avoid First Amendment issues. And, as noted in a separate message, legislation of this type passed by a State may well be unconstitutional, in view of what happened in Washington State.
Spam costs the recipiants money, there is no First Amendment protection which allows you to advertise to someone while costing them money at the same time.
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Playing devil's advocate here (I agree with the sentiment), I doubt language like this would find its way into a court opinion. Your television and cable services cost you money. Your telephone services cost you money. Indeed, your mailbox cost you money to maintain.
The issue depends closely how a particlar bill is crafted. Compelled speech (label your e-mail in a particular way) or prohibited speech can give rise to a First Amendment claim. (While I agree there are arguments to be made on both sides, I have always found it interesting how we Slashdotters tend to be First Amendment Absolutists on some issues and non-constitutionalists on others . .
There is already some jurisprudence on the subject, but nothing is likely to be settled (given the commerce clause issue), until the federal government gets into the act.
There *IS*, of course, a way to regulate spam that doesn't involve a content-based speech regulation: make it unlawful to misrepresent, whether by X-MAIL tag or otherwise, the manner with which e-mail was distributed. (There is an unassailable first amendment constitutional exception for regulation of false statements.)
Once this is done, we can modify our e-mail clients to include a tag, perhaps something like
X-DIST: 100 10
to mean "this e-mail has not been sent, either in identical or substantially similar form, to more than 100 people who have not previously subscribed for such e-mail in the past 10 days, whether by the sender of this message, or persons in privity with them." Or something like that.
Now, we can filter spam just fine -- and slam those who misrepresent (if you can catch them) with whatever book you care to throw at them -- and all without implicating the First.
It may well be that only federal legislation can resolve this problem. Washington State's anti-spam legislation was recently held unconstitutional on the ground that states may not regulate the flow of spam, in that doing so is unduly restrictive of interstate commerce in violation of Article I, Section 8 of the Constitution.
While another court may have a different view, there is precedent that seems indistinguishable in the present case.
And even if federal legislation is passed, there remains the outstanding First Amendment questions. Soon to be seen at an appellate court near you . . .
A fellow named Forte promoted a music classification system based on "tone vectors" during the late 70s and early 80s. While useful, in some people's view, for classifying atonal music, the sytem had an interesting side-effect.
All major modes and all minor modes were classified by the same vector. According to Forte, most western music was the same.
Compare this to RIAA's reply to Napsters answer to the Motion for Preliminary Injunction and other earlier documents. It has always been Napster's side of the story that the Supreme Court didn't mean what they wrote in Sony, and that Napster have been evil sly dogs.
It has always been Napster's view that the law is on their side. As a lawyer, I'm more likely to buy the hypertechnical defenses on behalf of Napster, but hey, that's just me. The District Court was moved by the "hey, they're taking everything for free" rhetoric, and the few cracks of light they could pull out of Sony.
Time will tell how the 9th Circuit feels about the matter. In the meanwhile, I didn't see anything really new in this brief at first glance.
Look, its like this. News stories always have errors -- sometimes minor, sometimes fundamental. News is written by generalists who gather information on very tight deadlines. Their job is to capture the gist of stuff and get it "out there" before their competition.
They try, but they never get it right.
Take this from a guy who's given a zillion interviews -- I don't even cringe anymore -- I just wonder WHAT they'll get wrong.
So, here's the deal -- the news guys got it wrong. Tell them the truth, and move on. Get over it.
There's nothing you can do about the media -- they're consitutionally bullet-proof so long as they didn't know it was a lie. And that's the way it should be. You WANT THEM to rush with what feels like a scoop. YOU NEED THEM to do that.
Just don't give them shit when they mess up. They're only doing their job.
Hardly naivete -- this was precisely my point.
RIAA need no longer grease radiostations, who in turn also collect from advertisers, but can get music in my ears at lower cost to them, so RIAA can vend their services and related IP products. By artbitraging the chain of distribution, the market is helped on both sides. It is true that the poor radio stations will suffer somewhat, for this devalues the amount they can charge for ads, but so what?
Cybergold does this in a slightly different way, yes, but its the same notion -- the net makes it possible to broker our attention, a commidity for which *WE* can now charge, so that relevant product gets into our hands more and more cheaply, and we are compensated for the inconvenience of previewing products in which we have no interest.
Me paying them to listen to their music? Are they kidding? Why should I listen to some new piece of crap, when I can hear it on the radio for free?
I expect new market economies to go the other way -- RIAA will have to pay *ME* (as they presently do pay radio stations) to audition streams of their new offerings.
Ultimately, serious market models will have artists (and not big label enterprises) bidding for mindshare, indeed, perhaps paying *US* to listen to samples of their offerings. Those that are great will rise to the top, and then they can charge us for performances, other services and perhaps recordings of that and their later works should we decide we want to hear it upon demand.
I think cobalt is both too soon and too late to claim ownership of the notion of "cube" for a geometric shape.
While they may be ok for Qube, spelled with a Q, they have a long way to go to complain about likelihood of confusion over the use of "Cube" to describe a cube.
Remember, Sting just lost a domain name claim for the word Sting.
Having the sources to exploits makes it easier for administrators and system engineers to measure the degree of risk posed by a particular exploit, and the extent to which a work-around has succeeded.
Truth to tell, there is no other way of telling for sure (particularly for DoS hacks) whether you have reasonably addressed a particular problem. (It is not, of course, sufficient to do such testing, but it is often quite helpful if not necessary).
The purpose of the Boycott is to take the moral high ground while making a serious statement to RIAA. It is critical that the boycotters are unpaintable as frustrated whining pirates who lost their favorite toys.
Thus, don't use the word boycott in the same breath as you discuss other alternatives to Napster. It sounds as though you are saying, "hey, I wasn't willing to steal content before --I was buing CD's just as I was sharing them-- but I'll do it now."
While that is another tack -- the guerilla "you can't touch me" approach -- it is inconsistent with, IMHO, the point of a boycott -- to expose a bad for what it is, while making your own point.
By all means boycott if you can get a signficant market force together, but while doing so, DO NOT "share" the content you are boycotting. Don't listen to it at all -- protest and picket at live performances by artists who don't come out against RIAA's position, and listen to free music from artists who do come out.
It may not be as much fun at Dance parties, but hey -- if it is a matter of principle, let's stand by our princples.
But this is more than keeping cash while listening to someone else's music -- so don't prove the RIAA's point for them. Turn away from "big music" in favor of local talent, or talent that takes a "new view." Encourage local radio stations to do so as well.
This would make a difference, and it would also make a point.
Guerilla tactics might work --and they might not work: but you are simply inviting more warfare and litigation. In case you hadn't noticed, that's fighting RIAA in a forum in which they are powerfully equipped.
Far better to fight the fights elsewhere:
(1) hit them in their pockets by not buying (and by not using) their products; make sure the local distributors of these products hear, politely but loud and clear, how you feel about these.
(2) get active -- write congressmen and senators -- do it now, and keep doing it.
(3) stay alert and educated -- there are sound, cogent arguments in support of your position, but many resort instead to pabulum and the language of "underground piracy". That will kill your position in the long run -- you need not only to mobilize those who agree with you, but also to convince those who do not hold fixed and strong positions on these matters.
I, for one, am a strong IP advocate. If anyone would have held a fixed position on these issues, it would have been me -- but I listened and heard the sound, solid arguments in support of Napster, and was "turned." Other smart people can be turned as well -- but not if all they are hearing is pabulum from both sides.
The idea is to have the activists who care active, and the people who don't pissed off at the other side.
For my part, I'm not buying RIAA CD's, but neither will I be using the alternative music sharing servers so long as the injunction is in place. I will be writing and advocating the virtues of the Napster position before the Congress and at every public opportunity, and assailing the arrogance and weaknesses of RIAA's position, while acknowledging their right to protect IP at the same time.
In the meanwhile, trust the system to get this right in the end. They did in Sony and they did in Diamond -- in time, so too will they do so with Napster. At the same time, watch out for the Congress, who can change the law with a word -- make sure it costs any Congressman or Senator in this election period to take the "big media" position -- MAKE IT AN ISSUE.
This morning, Vice-Presidential candidate Cheney was asked about Napster. He begged off, saying he didn't know much about it. This can't be permitted to happen.
Make it a grass roots political issue -- try to get someone in Congress to pass a limitation to exclusive rights expressly permitting space-shifting as a form of fair use or otherwise.
You can make it happen, if you have the right and the will to do so. Do you?
Ward Cunningham designed the first such web site of which I am aware (called a Wiki, or a Wiki-Wiki) several years ago. Co-webs have been in use for quite some time, though they tend to be somewhat more sophisticated than a mere place to dump ftp -- usually providing editors and "smart" pre-parsers to facilitate collaboration by newbies.'
See, e.g., this swiki page.
Despite the skepticism, these things work very well and are rarely the subject of abuse. A sandbox is provided for people who just want to play, and folks are generally quite courteous as a matter of practice. We use one for the Squeak Smalltalk open source community, which you can access from the main (traditional) web site page for Squeak.. The Swiki is one of the primary repositories of information for the Squeak community.
We have found cowebs an excellent vehicle for collaboratively creating documentation for open source projects that have run too long without doco support.. While it is not a great place to build final documents, it is a great place to gather information, and over time mold into the same.
In view of the nature of this matter, the alleged facts of a prior representation of Time-Warner, if true, make the conflict of interest clear. If they are as reported, Judge K should recuse himself as a matter of course.
But things are rarely what they seem -- reporting of technical legal matters, as with technical technical matters, in my experience, is rarely accurate.
I think the screenwriters addressed that carefully when they gave W the line, I can't remember exactly what he said, in response to Magneto's statement that he was sacrificing one for the good of all. I think the line was something to the effect of, "if you were so concerned for the benefit of all, it would be YOU operating the machine."
A careful view of the screenplay paints M as only evil. The entire plot line of the film depends upon it. Had Magneto made the self-serving, if misguided, effort to change the world himself (sacrificing his life to do so), he might well have succeeded -- he was able to hide his throughts and location from view. Instead, he conspires to get W, as a vehicle to get R, and thereby invoke the wrath and intervention of the Xavier school cabal.
Were M not evil and self-concerned, the screenplay would have to be much more introspective (and there would be no reason for W and R to be part of it).
No, I see it (from the Movie point of view), that this is a good mutant-bad mutant thing. No tragic anti-hero, M. He could have been, I agree -- but not in this screenplay.
In view of the competing interests and liabilities of the ISP, it is probably pragmatically necessary for the ISP to maintain as comprehensive a set of logs as possible.
Whatever policy is adopted, a breach of ethics would not arise from the maintenance of logs, but rather from the failure to inform customers that such logs are being maintained. By informing the customers, each customer is on notice to take steps to assure the security of any information sent in the clear or over the wire.
While I agree that the present primacy of NSI over .com, .org and .edu raises several problems, it is important to note from where NSI obtains its authority, and seat the blame appropriately. This solution may work itself out in time, once there is a non-NSI infrastructure capable of picking up the registry slack. Outfits like register.com are proof that sound competition is possible.
Now the trademark issues do not derive from NSI itself (although certainly some of them do), but from the tradmark laws, really stupid special-purpose legislation (the cybersquatting bill) and from limitations of the technology itself. Eliminating NSI from the mix would change none of these things.
The fact of the matter is that it is unlawful to use a mark in violation of trademark laws. Mere registration is not, by itself, an infringement, subsequent use of that registration will be. It doesn't matter who is registrar for the domain names -- the lawsuits will ensue. The anticybersquatter act further ensures this.
The problem is not with the law, either. Trademark law has developed reasonably over the centuries, and can readily cater to plural persons being able to use the identical mark. (ABC for a TV network, an unrelated pizza chain, an unrelated chain of liquor stores and countless garages and other small businesses; AAA for everything, and Acme for everything).
The difficulty derives from the fact that unlike a telephone listing, a domain name is unique. This doesn't have to be, although it is very convenient to have it be so, and technology could evolve, and maybe should evolve to permit plural acme.com's. See, e.g., an old white paper I wrote about five years ago on possible alternatives.
But the bottom line is this: NSI overreaches regularly, only because they can. They can only because NSF lets them, which it does because no one else was ready to step up to bat last time it was time to renew a contract. This is changing as we speak. And competitive registrars will probably intervene to protect their territory and prevent further overreaching, at least to some extent.
I see no reason to believe that another registrar, however well-meaning, will be better or worse than the status quo, absent a uniform set of black-and-white rules enforced by a meaningful authority.
Anarchy will make the problem worse, much worse, and not any better. Further, fear of the consequences of such anarchy will preclude the necessary critical mass to build to make the new top level domains possible.
I think we should rely on, and exploit, existing processes to hold NSI in check. This requires some patience, and perhaps the creation of some new technologies, but it can work. Other solutions proposed thus far seem only to introduce new problems, and probably no real new benefits.