There is no such thing as a "licence to use". Doesn't exist.
Read Eulas much?
US title 17 section 106 defines six exclusive rights a copyright holder may licence, but they really only amount to three different rights. The right to make copies (including derivatives), the right to distrubute them, and the right to public performance (including display and digital audio).
Alas for your perspective, the cases are clear -- the reading from disk and execution of code into RAM constitutes a reproduction within the meaning of 17 U.S.C. s. 106(a). The downloading of code and reproduction onto fixed media is, a fortiori, a reproduction.
Anyone who buys copy is the owner of that copy. He has every right to "use" it.
Except, of ourse, when he is not the owner of that copy. There are always implied licenses of course, but they exist only where they can be so understood. At any rate, I concur that in the context of music, I can certainly play the music in virtually any medium, either under an implied license or fair use, and under the AHRA, can probably change media with impunity. This gives me no right to transmit to you, unless of course, you have a license to receive it.
No one has ever sued a downloader because they can't. I invite you to find a single case of anyone ever sued for receiving a file.
It took about 10 seconds on Westlaw. Quick search for "copyright/s infringement/s download." Examples about, and of course the several -sterr opinions refer to downloading and uploading both as infringing acts, but how about DSC Communications corp. v. DGI Technologies, Inc., 898 F. Supp. 1183 (N.D. Tex. 1995) (granting preliminary injunction, holding, inter alia, that downloading copies of software from sustomer site constitutes copyright infringement)
There is also the Montgomery Ass'n of Realtors, Inc. v. Realty Photo Master Corp., 878 F. Supp. 804 (D. Md. 1995) (which holds, in dicta, that downloading copyrighted subject matter would constitute infringement).
Of course, uploading information to a resource operated by third parties in a swap meet where the information can be downloaded by others constitutes infringement, and cases are found whereby the analysis is on contribution grounds. Of course, there could be no contribution unless the receiving party was a direct infringer.
I haven't studied the many current RIAA cases to see if they are transmssion or reception cases, or both. Clearly, the RIAA Sample Complaint alleges both.
Ok, that's a minute or so of research on my part. Where is your authority for the contrary proposition?
It is impossible for the recipent to create a copy. You can't duplicate something you don't have. Only the uploader is in posession of a copy, only he is capable of creating another copy.
You say the recipient is not in possession of a copy, although on his disk there is a byte-for-byte identical
If the recipient demonstrates a license to use, I am safe to transmit
Incorrect. Without a licence you can't distribute to anyone. The proposal would have to be modified such that the copyright holder gives the uploader a licence to create and distribute a copy.
it doesn't address my proposal.
Even aside from the complexity of person A paying and B receiving the required licencing, it simply isn't worth involving P2P at all. Once you've already spent the money setting up a business and the servers and the internet pipe to run the website and send the licenses, the bandwith cost of sending the actual files is insignifigant.
With modification your proposal could be done, but you are involving P2P to solve a non-existant problem. Music sales aren't being held up by distribution issues. The actual issues are (1) no one wan
the vast amount of resources are taken in the tranmission of the underlying data, not the initial hanshakes. This is why Napster worked so very well (except from a legal point of view).
You have copyright law backwards. Everyone already has the right to receive absolutely anything. The restrictions of copyright law are on the person distributing, the uploader.
Actually, I think i have it exactly right. Both parties in this transmission face claims of copyright infringement: the recipient is going to make a copy on his hard disk, which is a reproduction, while the sending party is arguably engaging either in public performance or reproduction, or in the worst case, engaged in contributing to the recipient's reproduction.
If someone is licenced to make and sell copies of a CD they can give copies away for free as part of a promotion if they like (of course they have to pay the copyright holder whatever the licence says), and you are perfectly free to receive those free CD's.
This has no bearing on the point. If the recipient has no right to obtain a copy, then my contributing to the copying is an infringement. If the recipient demonstrates a license to use, I am safe to transmit. This is the point.
I am not sure I buy your hypothetical, but even accepting it at face value, it doesn't address my proposal.
Check out the copyright clearance center which provides licenses for copying magazine and journal article copies. And its existence has been addressed already by the courts in a famous Second Circuit case involving Texaco.
Most of the problems mentioned here apply, with equal force, to the on-line situation. I am simply suggesting that solutions be directed in a practical solution, using the benefits of modern encryption and communication protocols.
It is apparent that we should start separating concerns as soon as possible. If we proceed along these lines, with a kazillion ad hoc contracts and agreements, everything is going to come in to a babelesque and screeching halt.
Time for a few RFCs.
Everybody should do one thing well. Music licensing companies do one thing well -- collect money and offer licenses. P2P services do one thing well, facilitate distribution of content and sharing of information.
I can conceive of a few things we could do to facilitate it.
Imagine a license server protocols for license servers, which are capable of tranmitting a license, song-by-song, that permits the licensee to receive from ANY party a file representing that song. Presumably, the licensee can be given a token and authentication means that a prospective filesharer can check, perhaps by interaction with the license server, which then permits the file-sharer to transmit that song at will.
Now, conceive of various ways to engage in lawful commerce of great tunes:
1) enhance p2p services to perform license checks, so that when a person seeks to receive a tune, it will first have to authenticate the right to receive it. now, p2p can operate completely legally and in the clear -- and evolve to provide whatever value it can; and
2) vendor servers, either on the web, or through applications like iTunes, can provide super-duper interactions with users, combining and putting together tunes and samples, and then sell the tune to a customer (if unlicensed, sell the license -- if licensed, perhaps charge a bit because of special quality encoding or whatever).
Thus, we can always check to see if all of our tunes are licensed, and we can always check to see if the recipient can get our license.
Clearly kinks should be worked out, but I would WAY prefer to see the internet community get together to figure out the right way to do this -- rather than see yet another distribution infrastucture built up to protect yet another ridiculous hunk of turf.
This approach should be VERY attractive to music sources, making it possible to collect real revenues almost immediately, and from a kazillion purchase sources, without worrying too much about technology or distribution, and without having to negotiate with each and every individual prospective vendor -- by making it possible to create lightweight music servers that comply with the law, we make it easy for everybody to get legal.
Over the years, I've seen many IT executives lose their jobs or trash their careers because they made a decision that was obvious to them but could not be effectively defended to upper management or internal auditors.
Nobody ever got fired for buying IBM, I suppose. This is how the instant vendors retain their clout. No doubt, a Microsoft-only sysadmin has much to defend his case: (1) nearly everybody else --that matters-- does it; (2) it costs more, so it must be better; (3) they have been making money at this for years, so it must be better.
And then what? Presumably, in time, a high-minded management will expect answers more detailed than, "I played it safe and spent 28% of our overhead on infrastructure that everybody else has." The neat thing about commerce is that money does talk -- it is the flow of the dollars that will dicatate policy.
Guys like this don't matter, although they do intimidate weak minds. That's ok, we are not at the stage where the weak-minded matter -- they would ultimately come out the same way whether this guy scares them or not. Open source needs to address the "cost-of-ownership" issues and polish for enterprise, and in time, the nearly-best of us (presumably the best of us will still be making great stuff) will be promoted to positions to change the world.
Then we get to fire the fearmongers and weak-minded.
will it take an entire studio chain such as Universal or MGM to knock some sense into Valenti's mind?
Make no mistake, MPAA is simply a trade association -- the studio chains call the shots -- and likely called this one.
On the question how to lobby or make speeches, Valenti is king -- probably one of the best legislative advisors in the nation. But when they want Jack's opinion on film business and policy, they will give it to him.
if you say so... it may be "end of story," but it isn't the truth. I see non-patent art cited all the time. Indeed, in a recent article in Intellectual Property Today, a lawyer was griping that examiners have been citing all sorts of art to him in a recent rexamination.
But you go right ahead believing your unnamed examiner. Whatever you would like to believe.
In order to start whittling down the DMCA, we need to see some cases develop that find for a Defendant. Starting with ridiculous propositions such as suggesting a person playing a CD hold down the shift key, I anticipate a court will at last feel comfortable beginning to find for a defendant. Now, with cases on both sides of an extreme, DeCSS on one hand, and pressing the shift key on the other, we can start whittling down the terror that has become DMCA.
But some interesting things occur to me. I don't recall ever authorizing this manufacturer to install software on my machine. There was no shrink-wrap license, so far as I can tell from the articles, no opportunity to avoid installing the nasty stuff. If this is so, then the code is no different from so many viruses distributed with digital media, except this is intentional and willful.
Looks like a Computer Fraud and Abuse/Patriot Act case to me. Perhaps a Deceptive and Unfair Trade Practices counterclaim is due? Perhaps, even, it is time to suggest that the publisher who used it shoudl be held to account for illicitly installing software on people's machines without authorization. The devil is in the details -- I would need to see the packaging and actual software in process, but hell, this might be a relatively easy counterclaim to bring.
As I've posted time and again on every "patent on prior art" Slashdot post since 2000 at least: the PTO has gone on record (including in an interview here at slashdot a couple of years ago) to say that the only source they have or use for Prior Art investigations is their own database. If a patent application has been filed on it, there's prior art. If it hasn't, then there isn't any prior art and it never existed before.
Wrongo-bongo, you're making this up as you go -- or at least misplacing your reliance on what you read on Slashdot.
As anybody who has actually bothered to check would know, the PTO routinely cites to non-patent prior art these days in its office actions.
Varisign is free to provide a web service, such as sitefinder, which can provide web-enabled answers to queries for a web site. Our problem is that they did this by forcing every client performing a DNS search to suffer as a result.
If varisign's functionality is desired, and they do it better than anybody else, no doubt, it will be used. They can make the service available without breaking DNS and, heck, they can even set up a parallel DNS2 if they think innovation is required.
But they are presently playing with a public trust. It is not for them to decide how DNS works, but rather to implement and execute it in accordance with Internet standards. If they want to innovate by changing standards, they know how to write an RFC.
If that's all you are doing "waiting," then you will do a lot more waiting. Put together good, sound reasons, and lobby actively or support those who are lobbying -- until then, no Senator has any reason to do that.
Realistically, Senators will vote for or against a bill for one of two reasons: (i) they think it will get them elected; or (ii) they think it will get them votes for another bill whose passage will get them elected.
Until you start providing (i) or (ii), your hopes are going to remain just that: hopes.
The RIAA responded by calling the current situation an 'epidemic.'
An epidemic? Maybe, in the sense that the VCR was an epidemic.
One man's epidemic is another's business opportunity. RIAA hates the phrase "new business model," but so what? It is inevitable -- it has to happen.
RIAA is properly pursuing its rights against individual downloaders -- a far better solution to the problem than seeking ludicrous laws to castrate my computer or shut down legitimate businesses.
I agree that the statutory damges for downloading 100 tunes is ridiculous (minimum of $50,000, plus an award of attorney fees. To me, the interesting question is not that, but rather what should it be? A number properly tuned to be large enough to deter people from doing it without authorization (as opposed to going to a download service), accounting for the risk of getting caught and the cost of litigation?
What do you think? 1,000 per incident or $5 per song plus an award of fees, whichever is greater? (for "individual and non-expansive or non-commercial use copying")?
Of course they're not taking it down because it affected the internet, they're just doing it to keep good relations with the technical community.
Nonsense. They have already demonstrated significant contempt for the technical community -- remember their original response to ICANN's advisory?
They are doing it because ICANN's last letter put their super-duper exclusive right to operate the DNS in play. Maybe ICANN could terminate, maybe not -- but who would put the entire business on the line for this opportunity -- particularly when there still is a chance to negotiate something like that in the future?
So if you show up to court with the cd's of the songs for which you are accused then they have to throw out the case.
And why would that be?
Let's start with the presumption you are an honorable person.
Q. Did you make the.mp3 format files on your computer from that CD?
A. No.
Q. Did you have the CD when you copied it?
A. No
Thrown out how? You just confessed to copyright infringement.
Now, let's say you are willing to be deceiptful under oath. Be ready to rumble -- you are about to get thoroughly grilled -- hopefully, you can answer consistently, and survive a forensic analysis -- if not, you just added perjury and suffiicent evidence to multiply the statutory damages by a factor of five.
Sure, you can lie and you can cheat. You might even win possibly. And you will then be better than the RIAA how?
And under the hypothetical given, precisely which technological measure, so construed, is it claimed "effectively controls access to a work" pursuant to Section 1201(a)(3)(B), and if so, how is it circumvented per 1201(a)(3)(A)?
If you think that would constitute a DMCA violation, take your best shot. I think the RIAA would not only have strong defenses, but have a pretty fair chance at taking an attorney fee from you to boot.
The thing is, they don't have your computer, and don't really know what is on it. All they have is your IP address, but it might not even be your IP address. What if you have a wireless access point, and your neighbor's laptop picked it up and grabbed a connection in your home network? It would look like you were the one doing the filesharing, but it was really all on someone elses computer. In this case, you would be no more guilty than the ISP you are using.
There is process for addressing this: discovery. The parties look at the computer and use it to prove their case. If there is forensic evidence of guilt, too bad, so sad for the defendant. If there is forensic evidence of innocense, bad news for the plaintiff. If it is inconclusive, then you deal with more interesting facts -- and it is up to the parties. On the closest questions, the true 50-50 ones, the defendant wins. If the plaintiff's facts are more persuasive, the plaintiff wins, and vice-versa.
So the jury always smells the liar because the jury is the one who has the ultimate authority to decide what the "truth" is in the first place. - If the jury is wrong, how would an impartial outsider know?
Indeed. And so, we get to the misconception! Legal process is not about determining truth from a G-d's-eye view, for that is simply not possible. It is about giving a fair process and a reasonable shot to get there. The rules are set up to get to the truth whenever possible, and to expose liars -- cross examination is indeed quite "the crucible." An honest guy stands a far better shot than a deceptive guy when placed before a competent lawyer.
Sometimes the bad guy will win, sometimes not, and we will never, ever be able tell, at least in the purely theoretical sense. On the other hand, those of us who do this for a living have what, at least we believe to be, a decent sense about these things, and I must tell you, the liars tend to be shorn more often than not, and the truth-tellers, even the dull, inarticulate and suggestible ones, tend to come off as decent, honest people -- even given a withering cross.
The PROCESS is what this is about -- no pretense is ever made (except by prevailing party press releases) that the result of that process is always the truth.
In reviewing the threads in response here, I noted so many misconceptions as to how our legal system works, I thought it might be useful to compile them into a single e-mail rather than answer piecemeal.
Jury Trial. Somebody suggested that because this is a civil action, there is no jury trial. This is not the case. The Seventh Amendment assures that a plaintiff or defendant is entitled to a jury trial for an action traditionally at law, which includes actions for Copyright Infringement.
Preponderance of the Evidence.Because these are civil actions, the plaintiff only needs to prove the elements of his cause of action by a preponderance of the evidence. That is, to produce evidence tending to show that it is more likely than not that the allegation occurred. The theoretical possibilty that it might have happened otherwise doesn't suffice to get you off the hook (as it might in a criminal trial) unless you show not only that it is theoretically possible you aren't guilty, but that it is LIKELY that you aren't guilty.
Reliability. Most evidence is unreliable -- there are two sides to every tale, and you almost never have a forensic "gotcha" slam-dunk that will actually goes to trial. The standards of authentication are virtually trivial in many cases, and the weight of the evidence is weighed by ordinary people. I guarantee this -- at the end of the day, the jury is not going to listen to forensic experts on both sides contradicting one another as to whether there might have been fuzzy spoofing to frame the defendant -- the jury is going to consider the facts and evidence overall, the credibility of the witnesses and most significantly, the circumstances overall under which they occurred. Case in point: A produces contract supposedly signed by B. B denies signature. Signature experts on both sides quibble about authenticity of signature. This case will be decided not on the scientific evidence, almost never. It will be decided on the circumstances of the case: "Did you speak with A then? yes. Did you discuss the terms of this agreement? yes, but those weren't the terms. Did you get the shipment of widgets shortly thereafter? yes. did you install them? yes. did you see the invoice? i don't remember. did you ever complain about the price on the invoice? i don't remember. how about that first check you sent, how come you used the price set in the agreement then? well, that was a clerical error." The answers won't matter so much, as HOW they are answered. And you will be amazed at how well a jury can smell a liar.
Not everybody lies. When you are caught, at some point you will be asked the ultimate questions under oath, and then you have a choice: (i) tell the truth, in which case you may be credible enough to prevail; or (ii) lie, in which case you may be credible enough to prevail. The thing about lying, however, is this: you are lying. For many of us, when push comes to shove, personal honor tends to matter more than a few bucks. For others, well, that's how it goes -- they are the lying liars that make this place a sadder one in which to live.
RIAA has a case. Look, here it is. If the facts are true, if you have copies of unauthorized works on your computer, and they catch you -- you are busted. You did the deed, and it is actionable. You might not like it, but you are responsible under the law for your conduct.
Novel should mean novel, do something on the Internet that has been done for 20 years is not novel.
There is not a patent lawyer in the world who would disagree with you. Nor does the PTO or the Congress. If someone claims something that has been "done for 20 years," on the internet or otherwise, it is unpatentable. Of course, if it hadn't been done as claimed, it wouldn't be prior art.
Prior review get rid of the secrecy in the process, all applications to be subject to a one year protest period, same as the Europeans do
No gripe here, and many patent lawyers would agree as well. Indeed, the US has moved quite a bit closer to that already -- we are now publishing many (not all) applications 18 months after application, and of course, you can provoke an interference as soon as you have such specification and claims. The process isn't as good as European opposition practice, but hey, we're doing what we can.
The constituency with whom you have a gripe here is not large corporations, but rather those who claim to represent supposedly small independent inventors -- this lobby group fiercely opposed international harmonization, fought the publication right, insisted on the "US-only" publication exception and limited the scope of remedies of an inventor.
Still, there has been quite a bit of progress on this front, and many patent lawyers would tend to agree with you -- as did AIPLA and the ABA IP committees.
You have to invent it there are a ridiculous number of speculative patents filled where the inventor has actually invented nothing. Typical cases are in the genetics field where the first person to sequience a gene often files a patent that claims the use of the gene to solve every imaginable ailment before the 'inventor' knows anything about what the gene does
This is a tricky place, and once again, many patent lawyers and practitioners tend to agree. The law has developed well in this arena as well, with significant limitations on speculative applications whose claims are unsupported by a written description, or whose claims are not enabled by the specification. In practice, this is not as bad as it used to be, and is also improving.
I don't know if there is any presidential candidate who has ever taken the lead on intellectual property issues, at least not in this century -- can anybody think of an example?
federal judges are appointed for life. It has upsides and downsides, but guts come from not being accountable to the whims of the majority. Our founders were brilliant to recognize this -- true visionaries.
Slashdot Mirror
There is no such thing as a "licence to use". Doesn't exist.
/s infringement /s download." Examples about, and of course the several -sterr opinions refer to downloading and uploading both as infringing acts, but how about DSC Communications corp. v. DGI Technologies, Inc., 898 F. Supp. 1183 (N.D. Tex. 1995) (granting preliminary injunction, holding, inter alia, that downloading copies of software from sustomer site constitutes copyright infringement)
Read Eulas much?
US title 17 section 106 defines six exclusive rights a copyright holder may licence, but they really only amount to three different rights. The right to make copies (including derivatives), the right to distrubute them, and the right to public performance (including display and digital audio).
Alas for your perspective, the cases are clear -- the reading from disk and execution of code into RAM constitutes a reproduction within the meaning of 17 U.S.C. s. 106(a). The downloading of code and reproduction onto fixed media is, a fortiori, a reproduction.
Anyone who buys copy is the owner of that copy. He has every right to "use" it.
Except, of ourse, when he is not the owner of that copy. There are always implied licenses of course, but they exist only where they can be so understood. At any rate, I concur that in the context of music, I can certainly play the music in virtually any medium, either under an implied license or fair use, and under the AHRA, can probably change media with impunity. This gives me no right to transmit to you, unless of course, you have a license to receive it.
No one has ever sued a downloader because they can't. I invite you to find a single case of anyone ever sued for receiving a file.
It took about 10 seconds on Westlaw. Quick search for "copyright
There is also the Montgomery Ass'n of Realtors, Inc. v. Realty Photo Master Corp., 878 F. Supp. 804 (D. Md. 1995) (which holds, in dicta, that downloading copyrighted subject matter would constitute infringement).
Of course, uploading information to a resource operated by third parties in a swap meet where the information can be downloaded by others constitutes infringement, and cases are found whereby the analysis is on contribution grounds. Of course, there could be no contribution unless the receiving party was a direct infringer.
I haven't studied the many current RIAA cases to see if they are transmssion or reception cases, or both. Clearly, the RIAA Sample Complaint alleges both.
Ok, that's a minute or so of research on my part. Where is your authority for the contrary proposition?
It is impossible for the recipent to create a copy. You can't duplicate something you don't have. Only the uploader is in posession of a copy, only he is capable of creating another copy.
You say the recipient is not in possession of a copy, although on his disk there is a byte-for-byte identical
If the recipient demonstrates a license to use, I am safe to transmit
Incorrect. Without a licence you can't distribute to anyone. The proposal would have to be modified such that the copyright holder gives the uploader a licence to create and distribute a copy.
it doesn't address my proposal.
Even aside from the complexity of person A paying and B receiving the required licencing, it simply isn't worth involving P2P at all. Once you've already spent the money setting up a business and the servers and the internet pipe to run the website and send the licenses, the bandwith cost of sending the actual files is insignifigant.
With modification your proposal could be done, but you are involving P2P to solve a non-existant problem. Music sales aren't being held up by distribution issues. The actual issues are (1) no one wan
scalability
the vast amount of resources are taken in the tranmission of the underlying data, not the initial hanshakes. This is why Napster worked so very well (except from a legal point of view).
You have copyright law backwards. Everyone already has the right to receive absolutely anything. The restrictions of copyright law are on the person distributing, the uploader.
Actually, I think i have it exactly right. Both parties in this transmission face claims of copyright infringement: the recipient is going to make a copy on his hard disk, which is a reproduction, while the sending party is arguably engaging either in public performance or reproduction, or in the worst case, engaged in contributing to the recipient's reproduction.
If someone is licenced to make and sell copies of a CD they can give copies away for free as part of a promotion if they like (of course they have to pay the copyright holder whatever the licence says), and you are perfectly free to receive those free CD's.
This has no bearing on the point. If the recipient has no right to obtain a copy, then my contributing to the copying is an infringement. If the recipient demonstrates a license to use, I am safe to transmit. This is the point.
I am not sure I buy your hypothetical, but even accepting it at face value, it doesn't address my proposal.
Check out the copyright clearance center which provides licenses for copying magazine and journal article copies. And its existence has been addressed already by the courts in a famous Second Circuit case involving Texaco.
Most of the problems mentioned here apply, with equal force, to the on-line situation. I am simply suggesting that solutions be directed in a practical solution, using the benefits of modern encryption and communication protocols.
It is apparent that we should start separating concerns as soon as possible. If we proceed along these lines, with a kazillion ad hoc contracts and agreements, everything is going to come in to a babelesque and screeching halt.
Time for a few RFCs.
Everybody should do one thing well. Music licensing companies do one thing well -- collect money and offer licenses. P2P services do one thing well, facilitate distribution of content and sharing of information.
I can conceive of a few things we could do to facilitate it.
Imagine a license server protocols for license servers, which are capable of tranmitting a license, song-by-song, that permits the licensee to receive from ANY party a file representing that song. Presumably, the licensee can be given a token and authentication means that a prospective filesharer can check, perhaps by interaction with the license server, which then permits the file-sharer to transmit that song at will.
Now, conceive of various ways to engage in lawful commerce of great tunes:
1) enhance p2p services to perform license checks, so that when a person seeks to receive a tune, it will first have to authenticate the right to receive it. now, p2p can operate completely legally and in the clear -- and evolve to provide whatever value it can; and
2) vendor servers, either on the web, or through applications like iTunes, can provide super-duper interactions with users, combining and putting together tunes and samples, and then sell the tune to a customer (if unlicensed, sell the license -- if licensed, perhaps charge a bit because of special quality encoding or whatever).
Thus, we can always check to see if all of our tunes are licensed, and we can always check to see if the recipient can get our license.
Clearly kinks should be worked out, but I would WAY prefer to see the internet community get together to figure out the right way to do this -- rather than see yet another distribution infrastucture built up to protect yet another ridiculous hunk of turf.
This approach should be VERY attractive to music sources, making it possible to collect real revenues almost immediately, and from a kazillion purchase sources, without worrying too much about technology or distribution, and without having to negotiate with each and every individual prospective vendor -- by making it possible to create lightweight music servers that comply with the law, we make it easy for everybody to get legal.
This would be a good thing.
Over the years, I've seen many IT executives lose their jobs or trash their careers because they made a decision that was obvious to them but could not be effectively defended to upper management or internal auditors.
Nobody ever got fired for buying IBM, I suppose. This is how the instant vendors retain their clout. No doubt, a Microsoft-only sysadmin has much to defend his case: (1) nearly everybody else --that matters-- does it; (2) it costs more, so it must be better; (3) they have been making money at this for years, so it must be better.
And then what? Presumably, in time, a high-minded management will expect answers more detailed than, "I played it safe and spent 28% of our overhead on infrastructure that everybody else has." The neat thing about commerce is that money does talk -- it is the flow of the dollars that will dicatate policy.
Guys like this don't matter, although they do intimidate weak minds. That's ok, we are not at the stage where the weak-minded matter -- they would ultimately come out the same way whether this guy scares them or not. Open source needs to address the "cost-of-ownership" issues and polish for enterprise, and in time, the nearly-best of us (presumably the best of us will still be making great stuff) will be promoted to positions to change the world.
Then we get to fire the fearmongers and weak-minded.
will it take an entire studio chain such as Universal or MGM to knock some sense into Valenti's mind?
Make no mistake, MPAA is simply a trade association -- the studio chains call the shots -- and likely called this one.
On the question how to lobby or make speeches, Valenti is king -- probably one of the best legislative advisors in the nation. But when they want Jack's opinion on film business and policy, they will give it to him.
if you say so... it may be "end of story," but it isn't the truth. I see non-patent art cited all the time. Indeed, in a recent article in Intellectual Property Today, a lawyer was griping that examiners have been citing all sorts of art to him in a recent rexamination.
But you go right ahead believing your unnamed examiner. Whatever you would like to believe.
In order to start whittling down the DMCA, we need to see some cases develop that find for a Defendant. Starting with ridiculous propositions such as suggesting a person playing a CD hold down the shift key, I anticipate a court will at last feel comfortable beginning to find for a defendant. Now, with cases on both sides of an extreme, DeCSS on one hand, and pressing the shift key on the other, we can start whittling down the terror that has become DMCA.
But some interesting things occur to me. I don't recall ever authorizing this manufacturer to install software on my machine. There was no shrink-wrap license, so far as I can tell from the articles, no opportunity to avoid installing the nasty stuff. If this is so, then the code is no different from so many viruses distributed with digital media, except this is intentional and willful.
Looks like a Computer Fraud and Abuse/Patriot Act case to me. Perhaps a Deceptive and Unfair Trade Practices counterclaim is due? Perhaps, even, it is time to suggest that the publisher who used it shoudl be held to account for illicitly installing software on people's machines without authorization. The devil is in the details -- I would need to see the packaging and actual software in process, but hell, this might be a relatively easy counterclaim to bring.
Zephyr didn't turn off a "typing" indicator based on a timer, as claimed in the patent.
As I've posted time and again on every "patent on prior art" Slashdot post since 2000 at least: the PTO has gone on record (including in an interview here at slashdot a couple of years ago) to say that the only source they have or use for Prior Art investigations is their own database. If a patent application has been filed on it, there's prior art. If it hasn't, then there isn't any prior art and it never existed before.
Wrongo-bongo, you're making this up as you go -- or at least misplacing your reliance on what you read on Slashdot.
As anybody who has actually bothered to check would know, the PTO routinely cites to non-patent prior art these days in its office actions.
Prison is for people dangerous to society. Murderers, rapists, other assorted thugs.
Wrongo-bongo! Many people disagree, in particular: a majority of both houses of the legislature and the president of the United States.
Prison is for those for whom the legislature has said it is for.
Varisign is free to provide a web service, such as sitefinder, which can provide web-enabled answers to queries for a web site. Our problem is that they did this by forcing every client performing a DNS search to suffer as a result.
If varisign's functionality is desired, and they do it better than anybody else, no doubt, it will be used. They can make the service available without breaking DNS and, heck, they can even set up a parallel DNS2 if they think innovation is required.
But they are presently playing with a public trust. It is not for them to decide how DNS works, but rather to implement and execute it in accordance with Internet standards. If they want to innovate by changing standards, they know how to write an RFC.
Yes, this measure, by itself, will not remove all spam from the face of the Earth.
Yes, this measure will operate to make e-mail somewhat less convenient and require authenticated SMTP servers and the like.
But YES, Spam is awful and a serious problem, and if we wait for the silver bullet, we will accomplishn nothing ever at all.
We need to take steps, a few at a time, that will help, a bit. Steps, a few a t a time, that will help a bit, even if it means some inconvenience.
Eventually, the problem will be better.
Eventually,m the problem will be much better.
And maybe, the dollars will start moving to other ways to annoy us.
If that's all you are doing "waiting," then you will do a lot more waiting. Put together good, sound reasons, and lobby actively or support those who are lobbying -- until then, no Senator has any reason to do that.
Realistically, Senators will vote for or against a bill for one of two reasons: (i) they think it will get them elected; or (ii) they think it will get them votes for another bill whose passage will get them elected.
Until you start providing (i) or (ii), your hopes are going to remain just that: hopes.
The RIAA responded by calling the current situation an 'epidemic.'
An epidemic? Maybe, in the sense that the VCR was an epidemic.
One man's epidemic is another's business opportunity. RIAA hates the phrase "new business model," but so what? It is inevitable -- it has to happen.
RIAA is properly pursuing its rights against individual downloaders -- a far better solution to the problem than seeking ludicrous laws to castrate my computer or shut down legitimate businesses.
I agree that the statutory damges for downloading 100 tunes is ridiculous (minimum of $50,000, plus an award of attorney fees. To me, the interesting question is not that, but rather what should it be? A number properly tuned to be large enough to deter people from doing it without authorization (as opposed to going to a download service), accounting for the risk of getting caught and the cost of litigation?
What do you think? 1,000 per incident or $5 per song plus an award of fees, whichever is greater? (for "individual and non-expansive or non-commercial use copying")?
Of course they're not taking it down because it affected the internet, they're just doing it to keep good relations with the technical community.
Nonsense. They have already demonstrated significant contempt for the technical community -- remember their original response to ICANN's advisory?
They are doing it because ICANN's last letter put their super-duper exclusive right to operate the DNS in play. Maybe ICANN could terminate, maybe not -- but who would put the entire business on the line for this opportunity -- particularly when there still is a chance to negotiate something like that in the future?
So if you show up to court with the cd's of the songs for which you are accused then they have to throw out the case.
.mp3 format files on your computer from that CD?
And why would that be?
Let's start with the presumption you are an honorable person.
Q. Did you make the
A. No.
Q. Did you have the CD when you copied it?
A. No
Thrown out how? You just confessed to copyright infringement.
Now, let's say you are willing to be deceiptful under oath. Be ready to rumble -- you are about to get thoroughly grilled -- hopefully, you can answer consistently, and survive a forensic analysis -- if not, you just added perjury and suffiicent evidence to multiply the statutory damages by a factor of five.
Sure, you can lie and you can cheat. You might even win possibly. And you will then be better than the RIAA how?
Good show!
And under the hypothetical given, precisely which technological measure, so construed, is it claimed "effectively controls access to a work" pursuant to Section 1201(a)(3)(B), and if so, how is it circumvented per 1201(a)(3)(A)?
If you think that would constitute a DMCA violation, take your best shot. I think the RIAA would not only have strong defenses, but have a pretty fair chance at taking an attorney fee from you to boot.
they just violated the DMCA!
To precisely which clause of the DMCA do you allude? Or are you just making this up as you go along?
The thing is, they don't have your computer, and don't really know what is on it. All they have is your IP address, but it might not even be your IP address. What if you have a wireless access point, and your neighbor's laptop picked it up and grabbed a connection in your home network? It would look like you were the one doing the filesharing, but it was really all on someone elses computer. In this case, you would be no more guilty than the ISP you are using.
There is process for addressing this: discovery. The parties look at the computer and use it to prove their case. If there is forensic evidence of guilt, too bad, so sad for the defendant. If there is forensic evidence of innocense, bad news for the plaintiff. If it is inconclusive, then you deal with more interesting facts -- and it is up to the parties. On the closest questions, the true 50-50 ones, the defendant wins. If the plaintiff's facts are more persuasive, the plaintiff wins, and vice-versa.
So the jury always smells the liar because the jury is the one who has the ultimate authority to decide what the "truth" is in the first place. - If the jury is wrong, how would an impartial outsider know?
Indeed. And so, we get to the misconception! Legal process is not about determining truth from a G-d's-eye view, for that is simply not possible. It is about giving a fair process and a reasonable shot to get there. The rules are set up to get to the truth whenever possible, and to expose liars -- cross examination is indeed quite "the crucible." An honest guy stands a far better shot than a deceptive guy when placed before a competent lawyer.
Sometimes the bad guy will win, sometimes not, and we will never, ever be able tell, at least in the purely theoretical sense. On the other hand, those of us who do this for a living have what, at least we believe to be, a decent sense about these things, and I must tell you, the liars tend to be shorn more often than not, and the truth-tellers, even the dull, inarticulate and suggestible ones, tend to come off as decent, honest people -- even given a withering cross.
The PROCESS is what this is about -- no pretense is ever made (except by prevailing party press releases) that the result of that process is always the truth.
Novel should mean novel, do something on the Internet that has been done for 20 years is not novel.
There is not a patent lawyer in the world who would disagree with you. Nor does the PTO or the Congress. If someone claims something that has been "done for 20 years," on the internet or otherwise, it is unpatentable. Of course, if it hadn't been done as claimed, it wouldn't be prior art.
Prior review get rid of the secrecy in the process, all applications to be subject to a one year protest period, same as the Europeans do
No gripe here, and many patent lawyers would agree as well. Indeed, the US has moved quite a bit closer to that already -- we are now publishing many (not all) applications 18 months after application, and of course, you can provoke an interference as soon as you have such specification and claims. The process isn't as good as European opposition practice, but hey, we're doing what we can.
The constituency with whom you have a gripe here is not large corporations, but rather those who claim to represent supposedly small independent inventors -- this lobby group fiercely opposed international harmonization, fought the publication right, insisted on the "US-only" publication exception and limited the scope of remedies of an inventor.
Still, there has been quite a bit of progress on this front, and many patent lawyers would tend to agree with you -- as did AIPLA and the ABA IP committees.
You have to invent it there are a ridiculous number of speculative patents filled where the inventor has actually invented nothing. Typical cases are in the genetics field where the first person to sequience a gene often files a patent that claims the use of the gene to solve every imaginable ailment before the 'inventor' knows anything about what the gene does
This is a tricky place, and once again, many patent lawyers and practitioners tend to agree. The law has developed well in this arena as well, with significant limitations on speculative applications whose claims are unsupported by a written description, or whose claims are not enabled by the specification. In practice, this is not as bad as it used to be, and is also improving.
I don't know if there is any presidential candidate who has ever taken the lead on intellectual property issues, at least not in this century -- can anybody think of an example?
federal judges are appointed for life. It has upsides and downsides, but guts come from not being accountable to the whims of the majority. Our founders were brilliant to recognize this -- true visionaries.
For a truly amusing take on this, check out this tune from the Travis County Bar Association.