When an Internet provider charges someone hundreds of dollars in bandwidth costs because they were Slashdotted (or Farked) and their bandwidth use shot up, what costs have the Internet provider incurred, and why does it cost them what it does?
That is not a simple question to answer since there are several factors that have to be taken into consideration in determining price. Different type services, e.g. dialin lines, colocation, dedicated bandwidth, etc, have different factors.
The primary thing to remember is that the ISP business model is based on setting prices for the "average user". They do not directly pass on the cost of each user to that user. For example, a dialin phone line costs $25. That is the cost of just the line. It doesn't include equipment, employess, or bandwidth. The reason ISPs charge $20 or less is that the average user doesn't tie up the line 24/7 so that they can 7 to 10 users per dialin line.
The same is true with bandwidth. An average customer who gets a dedicated T1 usually averages 50% or less of the lines capacity. So the ISP can sell T1 service to two or three customers for each outgoing T1.
Another factor is peak vs average load. The ISP has to provide facilities to handle the peak load. Yet, most prices are set according to average load. Check this site if you want a graphic example of the slashdot effect.
All this presents a problem for ISPs in pricing for users want fast speeds but have low averages, e.g. colocated web sites or DSL lines. They can't charge for the maximum possible load. If they did, DSL lines would run closer to $1000 per month instead of $50. If they stictly base it on average load, the low users are subsidizing the bandwidth of the high users.
To resolve it, they have come up with a price tier that gives an incentive to users to, accurately as possible, estimate their usage. They make it cheaper for the user to pay for the next tier above their average monthly usage rather then paying for the tier below their monthly usage.
Maybe you should tell Judge Easterbrook that since he ruled that they were valid contracts in the ProCD case. The courts are divided on the issue. Which means that some courts have ruled that they are valid contracts.
I'll say that I also never agreed to a license agreement when I bought my DVD player that said I would only use CCA-licensed software to play movies on it.
Whether you could legally reverse-engineer the CSS on a linux box, (ignoring the DMCA for the moment), is an interesting; but irrelevent question. The people who originially cracked the CSS did it on a Windows box. According to the DVD-CCA, this was a violation of the NDA clause in the EULA.
I have numerous DVDs and at least 2 DVD players, but I don't ever remember accepting (or even seeing) any license agreements.
There is no license with the DVDs themselves. There are only two cases that I can think of where you can use a DVD player without agreeing to a licensing agreement: you bought a stand-alone player or you installed it on a linux box with linux drivers.
If the former, you are correct. You are free to reverse engineer it. Open the case and break out the logic analyzer and go to it. However, this is not how DeCSS was cracked.
If the latter, the DVD-CCA will argue that the drivers ultimately came someone who cracked it on a Windows machine thereby violating the NDA. Since it was obtained illegally, you should be barred from using it.
It would seem the only real trade secret here is that CSS is incredibly lame, so I can see how they'd be concerned about that getting out.
If you read the court documents, you would see that that is exactly one of the arguements the defendants are using. There are several declerations stating that the plaintiffs knew or should have know that CSS would eventually be cracked. This was not applicable in the 2600 case because Judge Kaplan ruled that the law doesn't only apply to "hard-to-crack" access control devices. However, it should be a factor in a trade secret case.
Apparently, there is also an issue over whether a user is authorized to access the information through a purchase of a DVD.
That would only apply if it was being tried under the DMCA. Copyright law implicitly gives the legal owner of a DVD the "right" to circumvent the CSS since it explicitly gives the legal owner the right to use it without the author's permission. The DMCA makes it illegal to distribute a "circumvention device". It does not necessarily make it illegal to use one.
Even Judge Kaplan noted the paradox.
If that is the case, there is no restriction on reverse-engineering, since I own a license to the data on the DVD.
Only if you can read the data on the DVD without using a commercial DVD player, e.g. you build your own. Otherwise, the CCA-DVD will argue that you violated the EULA of the DVD player.
i was referring more to the article stating that 2600 was "distributing" decss when they were in actuality just "linking"
Initially, 2600 had the DeCSS source on their web site. After the preliminary injuction banning that, they switched to linking to other web sites. After the court ruled against them on that issue, they just listed the URLs of sites that provided DeCSS without actually linking to them.
Yes, but that case was tried in federal court under the DMCA. This case is being tried in a CA court under the CA trade secret law. Different statutes and different jurisdictions mean that they are not legally related.
It's not clear by the report what the Stay that was vacated actually restricted or allowed.
The DVD CCA obtained a preliminary injuction aginst all defendents that prohibited them from posting DeCSS on their web sites. The CA Supreme Court ruled that CA did not have jurisdiction over Pavlovich. This means that Pavolich can post DeCSS without violating any court orders. O'Conner's stay basically put the CA decision on "temporary hold". Which meant that the CA preliminary injuction still applied to Pavolich until the SCOTUS sorted it out. By lifting the stay, it means that Pavlovich can once again put DeCSS on his web site without violating any court orders.
if the people in question are not earning money as a result of making avaialable information on CSS, they may not be subject to trade secret violations
Not necessarily true. There is another recent case, although under a different statute, that ruled that although the person who violated the law did not receive direct compensation, he was still subject to the law since people who received the information would economically benifit.
unless you are legally involved with the company holding the trade secret, (via NDA,...the fact that you are publicising what that company considers to be a trade secret is an indication that it is not a secret in any sense of the word.
Not quite true. If it becomes public knowledge through illegal means, you can be barred from using the information. Let's say an employee violates their NDA and posts Coke's "secret formula" on their web site. Pepsi could be legally barred from using the formula even though they violated no laws when they obtained it. The rational for this is that Pepsi would be profing from an illegal act even though they did not commit it themselves.
Which brings up the validity of the EULAs. (An issue that even the courts are divided on.) The CCA DVD's position is that the defendents knew or should have known that the only way to create DeCSS was to violate the EULA's prohibition against reverse engineering. If EULAs are not valid contracts, then the CCA DVD's case evoperates.
Justice Sandra Day O'Connor lifted the stay Friday, ending the DVD Copy Control Association's (DVD CCA's) effort to keep a California Supreme Court ruling from taking effect... The DVD CCA filed an application for a stay on the California ruling on Dec. 26. The stay was granted by O'Connor pending a response from Pavlovich's attorney. That response was due Thursday.
I would guess that she was swayed by the response since she lifted it the day after the response was due.
Is passing over California in the Space Shuttle or ISS enough for them to nail you court?
It already has. Many years ago, a dry state, IIRC OK, banned the serving of drinks on any flights that passed over their boundries. It was eventually overturned; but, I don't recall on which grounds.
It certainly depends on the state trade secret laws, because the same situation would result in KFC winning in several states.
What state do you would have a different outcome? AFAIK, all states require that the secret holder take resonable precaustions to protect their secret. If you lawfully obtain the secret without signing an NDA, you are legally allowed to disclose it.
I'm sure you can see how the Col. Sanders case is a bit different.
Not really. Basically, they are the same. The outcome will depend on the answer to the question "Did the defendants legally obtain the information?". In the KFC case, all items in the house become property of the new owner when they purchased the house and they had not signed any NDA.
The plaintiffs in the CA case are arguing that the defendants knew or should have known that the information was obtained illegally. I think the defendants could make an arguement that that is not necessarily true.
If it was treated as a trade secret, and the disclosure was unauthorized, the owner of the secret can certainly sue the disclosers even if it's no longer a secret.
There can be "unauthorized" discolsures where the owner does not have grounds to sue. A recent case involved KFC. A couple bought Col. Sanders house. The couple latter alleged to have found the "original recipe" amoung some papers left in the house. KFC tried to block the couples selling of the recipe; but, the judge wouldn't block it. This is a case where the discolure was unauthorized yet the owner had no grounds for a suit.
I disagree. The link you provided shows that the copyright law allows consumers to make copies of audio recordings:
No action may be brought under this title alleging infringement of copyright based on the manufacture,...of a digital audio recording device...or based on the noncommercial use by a consumer of such a device.
And Section 117(a)(2) gives the owner of software the right to make a backup copy.
What I would like to know is how this is going to effect the consumer,
It won't. At least not directly. None of the defendants were named because they made a backup copy. They were named because they posted DeCSS on their web sites.
but that's like someone trying to sell automobile door locks from the 70's that are easily openable with a slim-jim.
AFAIK, car doors can still be opened with slim jims. At least, that is how I have gotten into my car every time I locked my keys inside. Ironically, the only time my car was stolen, the thief(s) did not use a slim jim. They just broke the window.
"CNET has posted an article claiming the US Supreme Court will take up a 1999 case involving individuals posting DeCSS on web sites based in the US.
That is not what the article says.
Justice Sandra Day O'Connor last week placed a ruling by the California Supreme Court on hold, a decision that effectively enforces an injunction until the full court can consider the case.
The court has not yet decided if they are going to hear the case.
Lindows.com submitted declarations from expert witnesses and trade press articles from the 1980's, when several software companies were offering desktop environments. They spoke of the "window wars" of those years and had headlines like "Microsoft Does Windows."
In his order last March, Judge Coughenour denied Microsoft's request for a preliminary injunction in a 29-page order indicating that the little-known defendant had scored some points.
If you want the actual references,you will have to dig up the court documents yourself.
You should read the article before making such pronouncements. First, Lindows won the first round when the Judge refused to impose the restraining order requested by MS. Second, how close the word "lindows" is to "windows" is irrelevent if, as linodws claims, the word "windows" should not have been given trademark status in the first place.
Depends on your viewpoint. In the two previous cases, the judges said basically that any software that allows a user to circumvent access controls was ipso facto an infringing device.
This doesn't mean they can start selling the software again.
Conversely, it doesn't mean that they can't. There is no evidence produced to show that it was ever used to violate copyright law. This gives Elcomsoft a strong arguement if they want to get a declaritory judgement that says their software is legal under the DMCA. It will be difficult for Adobe to prove that its "main purpose" is to infringe copyright if they can't find a single instance of it being used in that fashion in spite of the number already sold.>p?
The Eula applies to the installed OS--if it is licensed. If the end user does not agree to the license terms, he *must*, according to the Eula, strip it from his system. That is a licensing term that the reseller agrees to when it pre-installs the OS.
You are assuming that EULAs are binding contracts. Even the courts are divided on this issue. Just because MS says it is a license does not automactially make it one.
Again, the proper place to make the complaint is Sony, in this case--they are the ones who originally purchased the OS, and who profit from its resale to a VAR.
I would agree with your postion if it was a straightforward purchase. But, it is not. MS alleges that you did not purchase the copy of software installed on your comptuer. They are the ones that wrote the EULA which explicitly says it is an agreement between MS and the end user. They are the ones that promise the refund which is a necessary condition for the EULA to even be considered a binding contract.
If MS wants to pretend it is a contract, then they should be obligated to follow the terms that they wrote.
Whether the law conisiders you are the legal owner of the copy of software is irrelevant. Ms alleges that you are not. eBay acts on that allegation and pulls the auction without notifying you. So, selling it on eBay is not an option.
last summer had an aquaintance of mine purchase a shrink wrapped XP box off the shelf at his local retailer.
So far, I am three for three on obtaining refunds on opened software even though their stated policy was "no refund" on opened software. However, none were trivial. The first two each took 1/2 hour arguing with the manager. I must have refined my arguements because the last one only took 10 minutes.
And most vendors around here charge a 15% restocking fee for notebooks, so you can see how far you would get.
You might be able to fight that. The judge in Hill v Compaq mused about who would be responsible for the shipping fee to return if the buyer refused to accept the TOS packaged with the computer. Since it wasn't an issue in the case, he didn't rule on it.
Even the courts are divided on this issue. Hill v Compaq said that it was a binding contract if the user didn't return the computer within 10 days. Klocek v. Gateway,same basic facts and same mediation clause under despute, was decided the other way.
As with the EULA thing it's a mistake by MS, they probably should change the wording so that they don't promise you a refund if you bought it as a part of a package.
They can't. If they remore the Refund Clause, it is not a legal contract. Read the ProCD, the first case to uphold click-wrap licenses. The Judge placed great emphasis on it. The reason is that you paid for the software before the software manufactor showed you the terms of the contract. They have to give you the right to back out of the contract after seeing the terms.
Slashdot Mirror
That is not a simple question to answer since there are several factors that have to be taken into consideration in determining price. Different type services, e.g. dialin lines, colocation, dedicated bandwidth, etc, have different factors.
The primary thing to remember is that the ISP business model is based on setting prices for the "average user". They do not directly pass on the cost of each user to that user. For example, a dialin phone line costs $25. That is the cost of just the line. It doesn't include equipment, employess, or bandwidth. The reason ISPs charge $20 or less is that the average user doesn't tie up the line 24/7 so that they can 7 to 10 users per dialin line.
The same is true with bandwidth. An average customer who gets a dedicated T1 usually averages 50% or less of the lines capacity. So the ISP can sell T1 service to two or three customers for each outgoing T1.
Another factor is peak vs average load. The ISP has to provide facilities to handle the peak load. Yet, most prices are set according to average load. Check this site if you want a graphic example of the slashdot effect.
All this presents a problem for ISPs in pricing for users want fast speeds but have low averages, e.g. colocated web sites or DSL lines. They can't charge for the maximum possible load. If they did, DSL lines would run closer to $1000 per month instead of $50. If they stictly base it on average load, the low users are subsidizing the bandwidth of the high users.
To resolve it, they have come up with a price tier that gives an incentive to users to, accurately as possible, estimate their usage. They make it cheaper for the user to pay for the next tier above their average monthly usage rather then paying for the tier below their monthly usage.
And they never have been.
Maybe you should tell Judge Easterbrook that since he ruled that they were valid contracts in the ProCD case. The courts are divided on the issue. Which means that some courts have ruled that they are valid contracts.
Whether you could legally reverse-engineer the CSS on a linux box, (ignoring the DMCA for the moment), is an interesting; but irrelevent question. The people who originially cracked the CSS did it on a Windows box. According to the DVD-CCA, this was a violation of the NDA clause in the EULA.
There is no license with the DVDs themselves. There are only two cases that I can think of where you can use a DVD player without agreeing to a licensing agreement: you bought a stand-alone player or you installed it on a linux box with linux drivers.
If the former, you are correct. You are free to reverse engineer it. Open the case and break out the logic analyzer and go to it. However, this is not how DeCSS was cracked.
If the latter, the DVD-CCA will argue that the drivers ultimately came someone who cracked it on a Windows machine thereby violating the NDA. Since it was obtained illegally, you should be barred from using it.
It would seem the only real trade secret here is that CSS is incredibly lame, so I can see how they'd be concerned about that getting out.
If you read the court documents, you would see that that is exactly one of the arguements the defendants are using. There are several declerations stating that the plaintiffs knew or should have know that CSS would eventually be cracked. This was not applicable in the 2600 case because Judge Kaplan ruled that the law doesn't only apply to "hard-to-crack" access control devices. However, it should be a factor in a trade secret case.
That would only apply if it was being tried under the DMCA. Copyright law implicitly gives the legal owner of a DVD the "right" to circumvent the CSS since it explicitly gives the legal owner the right to use it without the author's permission. The DMCA makes it illegal to distribute a "circumvention device". It does not necessarily make it illegal to use one.
Even Judge Kaplan noted the paradox.
If that is the case, there is no restriction on reverse-engineering, since I own a license to the data on the DVD.
Only if you can read the data on the DVD without using a commercial DVD player, e.g. you build your own. Otherwise, the CCA-DVD will argue that you violated the EULA of the DVD player.
Initially, 2600 had the DeCSS source on their web site. After the preliminary injuction banning that, they switched to linking to other web sites. After the court ruled against them on that issue, they just listed the URLs of sites that provided DeCSS without actually linking to them.
Yes, but that case was tried in federal court under the DMCA. This case is being tried in a CA court under the CA trade secret law. Different statutes and different jurisdictions mean that they are not legally related.
The DVD CCA obtained a preliminary injuction aginst all defendents that prohibited them from posting DeCSS on their web sites. The CA Supreme Court ruled that CA did not have jurisdiction over Pavlovich. This means that Pavolich can post DeCSS without violating any court orders. O'Conner's stay basically put the CA decision on "temporary hold". Which meant that the CA preliminary injuction still applied to Pavolich until the SCOTUS sorted it out. By lifting the stay, it means that Pavlovich can once again put DeCSS on his web site without violating any court orders.
if the people in question are not earning money as a result of making avaialable information on CSS, they may not be subject to trade secret violations
Not necessarily true. There is another recent case, although under a different statute, that ruled that although the person who violated the law did not receive direct compensation, he was still subject to the law since people who received the information would economically benifit.
unless you are legally involved with the company holding the trade secret, (via NDA, ...the fact that you are publicising what that company considers to be a trade secret is an indication that it is not a secret in any sense of the word.
Not quite true. If it becomes public knowledge through illegal means, you can be barred from using the information. Let's say an employee violates their NDA and posts Coke's "secret formula" on their web site. Pepsi could be legally barred from using the formula even though they violated no laws when they obtained it. The rational for this is that Pepsi would be profing from an illegal act even though they did not commit it themselves.
Which brings up the validity of the EULAs. (An issue that even the courts are divided on.) The CCA DVD's position is that the defendents knew or should have known that the only way to create DeCSS was to violate the EULA's prohibition against reverse engineering. If EULAs are not valid contracts, then the CCA DVD's case evoperates.
Reading between the lines:
I would guess that she was swayed by the response since she lifted it the day after the response was due.
Is passing over California in the Space Shuttle or ISS enough for them to nail you court?
It already has. Many years ago, a dry state, IIRC OK, banned the serving of drinks on any flights that passed over their boundries. It was eventually overturned; but, I don't recall on which grounds.
What state do you would have a different outcome? AFAIK, all states require that the secret holder take resonable precaustions to protect their secret. If you lawfully obtain the secret without signing an NDA, you are legally allowed to disclose it.
I'm sure you can see how the Col. Sanders case is a bit different.
Not really. Basically, they are the same. The outcome will depend on the answer to the question "Did the defendants legally obtain the information?". In the KFC case, all items in the house become property of the new owner when they purchased the house and they had not signed any NDA.
The plaintiffs in the CA case are arguing that the defendants knew or should have known that the information was obtained illegally. I think the defendants could make an arguement that that is not necessarily true.
There can be "unauthorized" discolsures where the owner does not have grounds to sue. A recent case involved KFC. A couple bought Col. Sanders house. The couple latter alleged to have found the "original recipe" amoung some papers left in the house. KFC tried to block the couples selling of the recipe; but, the judge wouldn't block it. This is a case where the discolure was unauthorized yet the owner had no grounds for a suit.
I disagree. The link you provided shows that the copyright law allows consumers to make copies of audio recordings:
And Section 117(a)(2) gives the owner of software the right to make a backup copy.It won't. At least not directly. None of the defendants were named because they made a backup copy. They were named because they posted DeCSS on their web sites.
AFAIK, car doors can still be opened with slim jims. At least, that is how I have gotten into my car every time I locked my keys inside. Ironically, the only time my car was stolen, the thief(s) did not use a slim jim. They just broke the window.
That is not what the article says.
The court has not yet decided if they are going to hear the case.From the article:
If you want the actual references,you will have to dig up the court documents yourself.You should read the article before making such pronouncements. First, Lindows won the first round when the Judge refused to impose the restraining order requested by MS. Second, how close the word "lindows" is to "windows" is irrelevent if, as linodws claims, the word "windows" should not have been given trademark status in the first place.
Actually, there are three. The two you mentioned and DVDCCA vs 500 John Does in CA.
This doesn't mean they can start selling the software again.
Conversely, it doesn't mean that they can't. There is no evidence produced to show that it was ever used to violate copyright law. This gives Elcomsoft a strong arguement if they want to get a declaritory judgement that says their software is legal under the DMCA. It will be difficult for Adobe to prove that its "main purpose" is to infringe copyright if they can't find a single instance of it being used in that fashion in spite of the number already sold.>p?
You are assuming that EULAs are binding contracts. Even the courts are divided on this issue. Just because MS says it is a license does not automactially make it one.
Again, the proper place to make the complaint is Sony, in this case--they are the ones who originally purchased the OS, and who profit from its resale to a VAR.
I would agree with your postion if it was a straightforward purchase. But, it is not. MS alleges that you did not purchase the copy of software installed on your comptuer. They are the ones that wrote the EULA which explicitly says it is an agreement between MS and the end user. They are the ones that promise the refund which is a necessary condition for the EULA to even be considered a binding contract.
If MS wants to pretend it is a contract, then they should be obligated to follow the terms that they wrote.
Whether the law conisiders you are the legal owner of the copy of software is irrelevant. Ms alleges that you are not. eBay acts on that allegation and pulls the auction without notifying you. So, selling it on eBay is not an option.
Then why does the EULA say it is an agreement between MS and the end user? It is MS, not the OEM, that is offering the contract and the refund.
Keep the OS and sell it to a friend or an acquaintance
That is a violation of the EULA. The EULA only allows to options: use it after agreeing to the terms or return it to the OEM for a refund.
Put it on Ebay if need be
And, Ebay will pull the auction down. MS alleges that you do not own the copy and Ebay will take down any auction that MS complains about.
So far, I am three for three on obtaining refunds on opened software even though their stated policy was "no refund" on opened software. However, none were trivial. The first two each took 1/2 hour arguing with the manager. I must have refined my arguements because the last one only took 10 minutes.
You might be able to fight that. The judge in Hill v Compaq mused about who would be responsible for the shipping fee to return if the buyer refused to accept the TOS packaged with the computer. Since it wasn't an issue in the case, he didn't rule on it.
Even the courts are divided on this issue. Hill v Compaq said that it was a binding contract if the user didn't return the computer within 10 days. Klocek v. Gateway,same basic facts and same mediation clause under despute, was decided the other way.
They can't. If they remore the Refund Clause, it is not a legal contract. Read the ProCD, the first case to uphold click-wrap licenses. The Judge placed great emphasis on it. The reason is that you paid for the software before the software manufactor showed you the terms of the contract. They have to give you the right to back out of the contract after seeing the terms.