I think if you wanted to put up a site slamming Microsoft's logo policy, you could legitimately display the logo as part of your description of the policy. You'd have to avoid using the logo in a way the makes it appear that MS endorses your remarks. That ought to be fairly easy to accomplish on a page slamming Microsoft.
If I were going to put up such a page, I wouldn't use Frontpage to develop the page, so it wouldn't be possible for anyone to claim I'd agreed to any shrinkwrap license. No reason not to use Notepad though!
Of course if you wanted to fight this thing out in court, you'd have to be prepared to do so in Washington rather than in your home state. I'm not prepared to do so.
"That law is called obstruction of justice. If you have a key, it can be subpoena'd at any time..."
If your key is written down, perhaps the government can get it via subpoena in some situations, but assuming that you are a criminal defendant, they can't make you recite your key if it isn't written down somewhere. Defendant's don't have to answer any questions (like "where did you hide the loot?" or "what is your passphrase") put to them by the prosecution.
A law requiring you to divulge an unwritten key would be unconstitutional IMO.
"Since it may be hard to invoke monetary damages with most GPL'ed code, the consequences under this part of US law may end up being very different from what the code authors intended."
It would not be that prohibitively difficult to obtain monetary damages from infringements of free code. First if the code is federally registered prior to the infringement, (and in some cases shortly after infringement) statutory damages are available without having to prove actual damages. I hope all US based programmers who release free code are taking the inexpensive step of registering their code with the Copyright office.
Second, actual damages can be based on profits obtained by the infringer (unjust enrichment) rather than simply lost value by the copyright holder, so if you win and get to audit the infringer, you can still get paid.
A final problem for the infringer is that an injunction might cause him to breach all of his business contracts because he will no longer be able to sell his product. At least by complying with the GPL, the infringer can avoid being sued by all of his customers.
"That's not what this (other) lawyer says. His feeling is that under many GPL-violating conditions no court would accept that you had agreed to the license, and thus you were simply in violation of copyright."
Good point.
Expressed another way, when people ask whether the GPL is enforceable, they are not necessarily questioning whether there consequences to not following the GPL'd terms. They may instead be asking whether a court would enforce the GPL by ordering a release of source code for example rather than simply giving one of the traditional remedies for copyright infringement (injunction, damages, attorney fees, etc)
In fact such a question is mostly moot since so far defendants have chosen to settle. The possible legal remedies to willful copyright infringement are so severe, including in some cases a felony conviction, that in clear cut situations, an infringer will probably think that complying with the GPL is the easy way out.
"The 20 year monopoly does NOT reward publication. It only confers upon the patent owner the right to EXCLUDE others from making, using, or selling the invention covered by the patent."
The patent holder gets that right in exchange for publishing a complete description his invention in the patent office where we can all read it if we so choose. Why don't you consider that arrangement a reward for publication?
"I see a few replys to your post saying "shooting a gun in pressurized cabin is dangerous, blah blah blah." May I remind them that since yesterday, the safety of the plane and its passengers is NO LONGER the chief concern. That era is gone, say bye bye."
So you are suggesting that a good way of stopping this kind of terrorism is for passengers to be ready to start a suicidal shootout in a plane flying over a city? Don't bother preventing the bad guys from having guns,just give everybody on the plane a gun and then trust their judgment to know when to shoot and when to just let the hijackers have their way?
"CDs were produced long before the idea of ripping and MP3s were mainstream. There is absolutely no obligation on the part of the music company to produce CDs that allow easy ripping or backing up. (Stopping a person from trying is another matter). At worst they can be accussed of producing CDs that don't follow spec but have the CD techology label on them."
Exactly. But mislabeling is half of what the suit is about. Apparently you agree with (or didn't read) the complaint.
Ironically, the Charlie Pride CD is the only one I'm aware of where the music industry has publiclly identified that copy protection is being used. In the other cases they have refused to give any indication that protection was being used.
The articles I read about the Charlie Pride CD also acknowledged that they wouldn't play on a small number of cd players. I presume that means that any system featuring an anti-skip feature probably has that problem. I hope that fact makes it into the complaint. In fact I think I'm going to revisit the web site drop an email to the attorney about exactly that point.
"How's that? You imply that proprietary is Bad but MP3 is Good."
Not really. The idea is if you plan to deliver music in an unexpected format that is limited in usefulness, you ought to let customer know what's going on up front, while delivering music in a well known, multi-platform, format might be more in keeping with a customer's expectations and thus might not require advanced warning.
"...who is going to set up a web site for this woman with an escrowed pay pal account for her legal costs"
I wouldn't bother. Any lawyer who files a law suit when their client only has $20 invested already has a strategy for getting paid. If this case reaches class action status, a chunk of the settlement will go towards paying the lawyer if the lawyer isn't awarded attorney fees. I see that the complaint does ask for attorney fees and punitive damages.
"Suing for the $20 a CD costs? It costs more in court fees to sue. How can she expect to get any
more than the price of the CD? And why not simply return it?"
Lots of stores won't take opened cds (or any other media) back other than in exchange for an identical item.
You're correct that it isn't feasible to get the $20 back by suing. That's why the next step in suits like this is to seek certification as a class action. If the original suit isn't dismissed, it seems to me that certification as a class action would be relatively simple.
I'll bet that at least one of the claims in the suit includes court costs and attorney fees.
"I'm not sure where the idea that Bush killed the breakup push came from, but it isn't implied in any of the stories linked on the front page."
Actually the MSNBC story quotes a denial, but the BBC story says just the opposite. Both stories could easily be true if the anonymous person denying White House involvement simply isn't positioned to know.
I've seen a number of posts suggesting that there is no doubt about Dmitri's guilt. Here is a list of conceivable ways that Dmitri could be found not guilty.
1) The DMCA is unconstitutional. No valid law to break means not guilty.
2) No jurisdiction over whatever activities Dmitri did commit. I don't think Dmitri can be prosecuted for writing or using the program in Russia. He must be implicated in the sales activity.
3) Although Dmitri is the copyright holder, the government does not establish that he colluded with Elcomsoft to sell the product in the US. Most countries don't have the same kind of "work for hire" copyright laws as the US, so it is perfectly plausible for a Russian employee to be a credited with the copyright and yet not be the motivating factor in his employer's sales strategy.
I haven't read the latest charges so I don't know what evidence the government has other than what was alleged in the original affidavit.
For those people who want to see the whole thing played out to the end, there is this encouraging news from Dmitri's lawyer:
Mr. Burton said Mr. Sklyarov would not plea-bargain. "That is out of the question," he said.
It's important to note that only a relatively small range of DMCA effects were fair game for this exercise.
After reading the responses to the comments that were submitted, I concluded that it really doesn't matter how many comments were received. Every argument I can come up with that is relevant to the topic was received and summarily dismissed with for the most part relatively poor arguments. Even where there was acknowledgement of a problem, the recommendation seemed to be to wait until the problem was big enough to more of a bother.
If you are short on time for reading, I'd recommend skipping to the Evaluation and Recommendations" section. Most people are already familiar with the arguments summarized in the rest of the document anyway.
These positions found in the report suggest that the Register of Copyrights is not your friend in this issue:
1) You don't need the ability to back up software anymore because it's distributed on cdrom and the cdrom is your backup.
2) Technological measures that tether e-books to a particular PC do interfere with first sale doctrine, but Congress should wait until the problem is more widespread. (Of course at that point we should expect intense lobbying from copyright holders)
3) Arguments about using DVD's on non industry approved devices (like on a linux based pc) are akin to suggesting that consumers should be able to playing Betamax casettes on VHS players.
4) The ultimate question is whether an equivalent to the first sale doctrine should be crafted to apply in the digital environment. (In other words this issue isn't about restoring rights at all, it's about whether we should create new ones at the copyright holders expense)
I seems to me that the author of this paper was prepared to reject any argument. If more people had submitted responses, I suppose there is some chance one or more of the stupid responses the Register came up with might have been debunked, but I doubt it.
"Does anyone know how much information is required to be presented to the ISP?"
Sure. It's described in 17 U.S.C. 512(c)(3).
1) Physical or electronic signature of person authorized to act on behalf of the copyright holder.
2) Identification of the infringed work
3) Identification of the work on the ISP's system with enough detail for the ISP to take action.
4) Contact info for complaining party
5) Statement that info is accurate and that the writer is authorized to act on behalf of the copyright holder. The matter of authorization is under penalty of perjury, but the accuracy of the info is not.
6) Must state a good faith belief that the use of the material is unauthorized.
That's it. I see that some people believe that their ISP's are stand up guys who will stand up for their customers' rights. I don't believe any ISP will refuse to take down anything that meets the criteria above.
"Finally, is Sklyarov's talk exempted under section 1201[f], which specifically exempts "encryption research"?"
I don't think we need an exception because discussing how to build circumvention or alternatively discussing holes in a protection scheme isn't illegal. As you stated, what is illegal is circumventing and trafficing in circumvention devices.
Secondly, if you read the FBI affidavit supporting the charges, you'll see that the basis of the single count against Sklyarov is that the program is being sold via a website by his company, and that the program displayed Dmitri's name as the copyright holder. He clearly wasn't arrested for giving a talk about encryption technology.
It appears to me that Dmitri hasn't committed any act in this country chargeable under the DMCA. It's particulary interesting that the company president/owner was present when Dmitri was arrested since he would be the one responsible for the product being sold in the US.
Has Dmitry even had a bail hearing yet? Is he still in Vegas?
Slashdot Mirror
I think if you wanted to put up a site slamming Microsoft's logo policy, you could legitimately display the logo as part of your description of the policy. You'd have to avoid using the logo in a way the makes it appear that MS endorses your remarks. That ought to be fairly easy to accomplish on a page slamming Microsoft.
If I were going to put up such a page, I wouldn't use Frontpage to develop the page, so it wouldn't be possible for anyone to claim I'd agreed to any shrinkwrap license. No reason not to use Notepad though!
Of course if you wanted to fight this thing out in court, you'd have to be prepared to do so in Washington rather than in your home state. I'm not prepared to do so.
"That law is called obstruction of justice. If you have a key, it can be subpoena'd at any time..."
If your key is written down, perhaps the government can get it via subpoena in some situations, but assuming that you are a criminal defendant, they can't make you recite your key if it isn't written down somewhere. Defendant's don't have to answer any questions (like "where did you hide the loot?" or "what is your passphrase") put to them by the prosecution.
A law requiring you to divulge an unwritten key would be unconstitutional IMO.
"Since it may be hard to invoke monetary damages with most GPL'ed code, the consequences under this part of US law may end up being very different from what the code authors intended."
It would not be that prohibitively difficult to obtain monetary damages from infringements of free code. First if the code is federally registered prior to the infringement, (and in some cases shortly after infringement) statutory damages are available without having to prove actual damages. I hope all US based programmers who release free code are taking the inexpensive step of registering their code with the Copyright office.
Second, actual damages can be based on profits obtained by the infringer (unjust enrichment) rather than simply lost value by the copyright holder, so if you win and get to audit the infringer, you can still get paid.
A final problem for the infringer is that an injunction might cause him to breach all of his business contracts because he will no longer be able to sell his product. At least by complying with the GPL, the infringer can avoid being sued by all of his customers.
"That's not what this (other) lawyer says. His feeling is that under many GPL-violating conditions no court would accept that you had agreed to the license, and thus you were simply in violation of copyright."
Good point.
Expressed another way, when people ask whether the GPL is enforceable, they are not necessarily questioning whether there consequences to not following the GPL'd terms. They may instead be asking whether a court would enforce the GPL by ordering a release of source code for example rather than simply giving one of the traditional remedies for copyright infringement (injunction, damages, attorney fees, etc)
In fact such a question is mostly moot since so far defendants have chosen to settle. The possible legal remedies to willful copyright infringement are so severe, including in some cases a felony conviction, that in clear cut situations, an infringer will probably think that complying with the GPL is the easy way out.
"The 20 year monopoly does NOT reward publication. It only confers upon the patent owner the right to EXCLUDE others from making, using, or selling the invention covered by the patent."
The patent holder gets that right in exchange for publishing a complete description his invention in the patent office where we can all read it if we so choose. Why don't you consider that arrangement a reward for publication?
"I see a few replys to your post saying "shooting a gun in pressurized cabin is dangerous, blah blah blah." May I remind them that since yesterday, the safety of the plane and its passengers is NO LONGER the chief concern. That era is gone, say bye bye."
So you are suggesting that a good way of stopping this kind of terrorism is for passengers to be ready to start a suicidal shootout in a plane flying over a city? Don't bother preventing the bad guys from having guns,just give everybody on the plane a gun and then trust their judgment to know when to shoot and when to just let the hijackers have their way?
No thanks.
"CDs were produced long before the idea of ripping and MP3s were mainstream. There is absolutely no obligation on the part of the music company to produce CDs that allow easy ripping or backing up. (Stopping a person from trying is another matter). At worst they can be accussed of producing CDs that don't follow spec but have the CD techology label on them."
Exactly. But mislabeling is half of what the suit is about. Apparently you agree with (or didn't read) the complaint.
Ironically, the Charlie Pride CD is the only one I'm aware of where the music industry has publiclly identified that copy protection is being used. In the other cases they have refused to give any indication that protection was being used.
The articles I read about the Charlie Pride CD also acknowledged that they wouldn't play on a small number of cd players. I presume that means that any system featuring an anti-skip feature probably has that problem. I hope that fact makes it into the complaint. In fact I think I'm going to revisit the web site drop an email to the attorney about exactly that point.
"How's that? You imply that proprietary is Bad but MP3 is Good."
Not really. The idea is if you plan to deliver music in an unexpected format that is limited in usefulness, you ought to let customer know what's going on up front, while delivering music in a well known, multi-platform, format might be more in keeping with a customer's expectations and thus might not require advanced warning.
"Luckily, CloneCD [www.elby.de] didn't have any trouble at all."
The protection schemes I've read about wouldn't be defeated by using CloneCD. Are you sure you didn't just have a defective CD?
"...who is going to set up a web site for this woman with an escrowed pay pal account for her legal costs"
I wouldn't bother. Any lawyer who files a law suit when their client only has $20 invested already has a strategy for getting paid. If this case reaches class action status, a chunk of the settlement will go towards paying the lawyer if the lawyer isn't awarded attorney fees. I see that the complaint does ask for attorney fees and punitive damages.
"Suing for the $20 a CD costs? It costs more in court fees to sue. How can she expect to get any
more than the price of the CD? And why not simply return it?"
Lots of stores won't take opened cds (or any other media) back other than in exchange for an identical item.
You're correct that it isn't feasible to get the $20 back by suing. That's why the next step in suits like this is to seek certification as a class action. If the original suit isn't dismissed, it seems to me that certification as a class action would be relatively simple.
I'll bet that at least one of the claims in the suit includes court costs and attorney fees.
"I'm not sure where the idea that Bush killed the breakup push came from, but it isn't implied in any of the stories linked on the front page."
Actually the MSNBC story quotes a denial, but the BBC story says just the opposite. Both stories could easily be true if the anonymous person denying White House involvement simply isn't positioned to know.
I've seen a number of posts suggesting that there is no doubt about Dmitri's guilt. Here is a list of conceivable ways that Dmitri could be found not guilty.
1) The DMCA is unconstitutional. No valid law to break means not guilty.
2) No jurisdiction over whatever activities Dmitri did commit. I don't think Dmitri can be prosecuted for writing or using the program in Russia. He must be implicated in the sales activity.
3) Although Dmitri is the copyright holder, the government does not establish that he colluded with Elcomsoft to sell the product in the US. Most countries don't have the same kind of "work for hire" copyright laws as the US, so it is perfectly plausible for a Russian employee to be a credited with the copyright and yet not be the motivating factor in his employer's sales strategy.
I haven't read the latest charges so I don't know what evidence the government has other than what was alleged in the original affidavit.
For those people who want to see the whole thing played out to the end, there is this encouraging news from Dmitri's lawyer:
Mr. Burton said Mr. Sklyarov would not plea-bargain. "That is out of the question," he said.
It's important to note that only a relatively small range of DMCA effects were fair game for this exercise.
After reading the responses to the comments that were submitted, I concluded that it really doesn't matter how many comments were received. Every argument I can come up with that is relevant to the topic was received and summarily dismissed with for the most part relatively poor arguments. Even where there was acknowledgement of a problem, the recommendation seemed to be to wait until the problem was big enough to more of a bother.
If you are short on time for reading, I'd recommend skipping to the Evaluation and Recommendations" section. Most people are already familiar with the arguments summarized in the rest of the document anyway.
These positions found in the report suggest that the Register of Copyrights is not your friend in this issue:
1) You don't need the ability to back up software anymore because it's distributed on cdrom and the cdrom is your backup.
2) Technological measures that tether e-books to a particular PC do interfere with first sale doctrine, but Congress should wait until the problem is more widespread. (Of course at that point we should expect intense lobbying from copyright holders)
3) Arguments about using DVD's on non industry approved devices (like on a linux based pc) are akin to suggesting that consumers should be able to playing Betamax casettes on VHS players.
4) The ultimate question is whether an equivalent to the first sale doctrine should be crafted to apply in the digital environment. (In other words this issue isn't about restoring rights at all, it's about whether we should create new ones at the copyright holders expense)
I seems to me that the author of this paper was prepared to reject any argument. If more people had submitted responses, I suppose there is some chance one or more of the stupid responses the Register came up with might have been debunked, but I doubt it.
"Does anyone know how much information is required to be presented to the ISP?"
Sure. It's described in 17 U.S.C. 512(c)(3).
1) Physical or electronic signature of person authorized to act on behalf of the copyright holder.
2) Identification of the infringed work
3) Identification of the work on the ISP's system with enough detail for the ISP to take action.
4) Contact info for complaining party
5) Statement that info is accurate and that the writer is authorized to act on behalf of the copyright holder. The matter of authorization is under penalty of perjury, but the accuracy of the info is not.
6) Must state a good faith belief that the use of the material is unauthorized.
That's it. I see that some people believe that their ISP's are stand up guys who will stand up for their customers' rights. I don't believe any ISP will refuse to take down anything that meets the criteria above.
"Finally, is Sklyarov's talk exempted under section 1201[f], which specifically exempts "encryption research"?"
I don't think we need an exception because discussing how to build circumvention or alternatively discussing holes in a protection scheme isn't illegal. As you stated, what is illegal is circumventing and trafficing in circumvention devices.
Secondly, if you read the FBI affidavit supporting the charges, you'll see that the basis of the single count against Sklyarov is that the program is being sold via a website by his company, and that the program displayed Dmitri's name as the copyright holder. He clearly wasn't arrested for giving a talk about encryption technology.
It appears to me that Dmitri hasn't committed any act in this country chargeable under the DMCA. It's particulary interesting that the company president/owner was present when Dmitri was arrested since he would be the one responsible for the product being sold in the US.
Has Dmitry even had a bail hearing yet? Is he still in Vegas?
Isaac