Headline: 10 Years Later, Misunderstood DMCA Is the Law That "Saved the Web"
I felt a great disturbance in the Force, as if millions of voices of anti-copyright extremists suddenly cried out in terror and were suddenly silenced. I fear something terrible has happened.
That is true, however the FCC guarantees to broadcasters the use of their designated channel *to be free from interference* of neighboring channels. That is why there is a two channel minimum gap on TV, on FM, and on AM. If stations co-existed side-by-side within the same market, they would interfere with one another. Likewise if a Whitespace Device Broadcast exists side-by-side with a TV broadcast, then the WSD's signal will "spillover" onto the existing local station, and violate that station's exclusive right to that channel.
IMHO if the FCC would not allow a TV station 16 or 18 to exist adjacent to WPHL-17, then they should not allow a WSD to be there either. The WSD should be blocked from using that entire range: 16, 17, and 18 when in the presence of WPHL. ----- And once you make that assumption, and you examine my local market near Philly, you discover there are only 4 channels that fit the criteria as open (2,3,4,25).
That is certainly a defensible position on this topic.
I don't want to get into a debate over language. I will say, however, that I think your original characterization of the situation (i.e., "there are NO unused television frequencies") is, at best, pretty misleading.
I understand that you want to define the buffer zones as "in use as buffer zones" and I want to define them as "not in use." I think there is room for debate on that topic. But, in a thread where many readers may not be as familiar with this topic as the two of us seem to be, it seems likely that your declaration of there being no open channels is somewhat disingenuous. Contrast that with my prior explanation which, for all of its flaws, at least addressed the fact that the channels are used as buffers to prevent interference even while declaring them "unused."
The flaw with that reasoning is that there are NO unused television frequencies. The entire east and west coast is densely-packed and every channel from 2 to 51 is assigned a station. In my area (near Philly) there's only 4 non-adjacent open channels (2,3,4, and 25). That's it. And only one of them is useful for small devices (25).
The only region of the United States that is truly "open" is west of the Mississippi River & east of the California border. There are lots of empty non-assigned channels (mostly 21-51), but very few people live in this area.
In the U.S., the FCC allocates spectrum for, among other things, broadcast television. When the FCC allocates spectrum for television, they do not license adjacent channels in the same geographic market. They also do not license out the same channel to broadcasters in adjacent geographic markets.
Historically, spectrum was licensed this way due to concerns that, within the same geographic market, broadcasts on adjacent channels would bleed into each other and cause interference or that, in rural areas located near the boundary between geographic markets, broadcasts on the same channel would interfere with each other.
So, in a saturated broadcast market, half of all channels lie fallow as buffer zones between broadcasters. The White Spaces Coalition advocates freeing up these buffer channels which currently lie fallow for internet access.
That means if little ol' grandma is getting sued by the RIAA and she says "I never downloaded any music!" but the RIAA produces some log from an ISP showing that her niece e-mailed her some Britney Spears song, well we'd have to persecute grandma for perjury.
Though I agree with your general point regarding equal application of the law, I am going to quibble with the above example. Also, I think you meant "prosecute" and not "persecute".
Black's Law Dictionary defines perjury as "The act or an instance of a person's deliberately making material false or misleading statements while under oath." Assuming a jurisdiction where this definition is used in either the common law or statutory definition of perjury, Granny (or, more likely, her lawyer) might rightfully argue that she understood the question regarding music downloads to be constrained to the use of P2P software and so did not "deliberately mak[e] false or misleading statements while under oath."
Perjury contains an element of intent for a reason. The point is not to punish mistaken testimony but to punish those who intentionally mislead the court. There are substantial policy reasons to let the former go while punishing the latter. Perhaps a better example is to say that a judge would be loathe to enforce penalties for perjury against the grandmother who is lying to protect the niece's use of Grandma's computer to download music.
My understanding of the situation in Europe is that there are explicit statutory provisions for copyrighting databases. Congress has, so far, been pretty resistant to passing such a law, despite lobbying efforts by many commercial database operators. In any event, given the fundamental differences between U.S. and European copyright law (i.e. Utilitarian vs. natural rights origins) and the fact that originality dictates copyrightability, it is unclear to what extent a U.S. law protecting the contents of databases could be supported by the Constitution's progress clause.
Sure, it can boil down to money, but from the immediate perspective of the developer, it's about simply making our jobs easier.
Pardon my economic geek-out, but saying that you chose one platform over another because of ease still implies a cost-benefit analysis. Two examples of cost-benefit analysis that could lead to your conclusion to develop on the easier platform:
1. The difference in potential profits between the easier platform and costlier platform is low enough that you don't value the additional expenditure of effort over the minimal profit gain you may realize from the more popular platform. This might be an even more intriguing choice if your platform of choice allows you to develop multiple products in the same amount of time as it takes you to develop a single product on the more complex platform.
2. Perhaps, rather than valuing the expenditure of additional effort over profits, you value your leisure time over additional profits. This too would be an economic choice as you are foregoing the potential increased profits in exchange for additional leisure time.
My point, however, remains valid: Choosing one platform over another because the chosen platform is easier inevitably implies either an irrational choice or a choice rooted in cost-benefit analysis. If the second alternative is true, then you made a decision that can be described as economical, even if your choice was one that would lower your profits.
I'm not calling you irrational, just suggesting that an economic model can describe your actions even when you forego profits.
The thing about it is, talented developers often find themselves in the "software architect" position on projects; that is, deciding upon which platform to build a project. While popularity of a platform (and therefore the possibility of profit) does have an impact on that decision, many developers find that it's simply easier to code on open platforms, as well as obtain assistance from the community that's built up around them.
Economic reasons are not the only thing looked at, in other words.
So, if I'm understanding you correctly, you are asserting that a platform's amenability to shortened development cycles ("easier to code on") and the availability of a free development support structure ("assistance from the community") aren't "economic reasons" for picking one platform over another?
There are many reasons why the author of an EULA wouldn't want to provide a summary. For instance, California courts have held health insurance providers to descriptions of terms found in the explanatory pamphlets they give to customers, even when the pamphlet conflicts with the actual terms of the agreement.
I don't necessarily disagree with that decision, but other writers of legalese for customer consumption would be foolish not to pay attention to that type of development in the law.
On the other hand, a state could pass both law requiring such summaries be made available and granting immunity from suit over the summary's content (i.e. the summary can't be litigated, only the actual privacy policy). Of course, if the summary can't be litigated, then of what use is the law?
Future law students thank everyone here for essentially suggesting the creation of yet another restatement that they will have to learn.
"Okay, class, please turn to page 361 of the 2nd Restatement of End User Usage & License Agreements. Can anyone tell my why the authors chose to expressly disallow unconscionability arguments where there is a substantial difference in consideration between parties?"
If Apple would ever come to be regarded as evil as Microsoft is. I personally believe that Apple's business practices would make them far worse than MS if they had 90% of the market instead of 7%.
They are able to survive because they are filling a niche market, leading me to believe that they will not be a serious competitor to MS anytime soon.
In the meantime I await the continual improvement of linux to cause a critical mass of marketshare so that vendors will finally start giving it proper support....
Why would you assume that Apple's business practices would even be the same if they had 90% of the market?
Because of the influence of many factors, including law, politics and even popular culture, a company with 7% of the market has significantly more maneuverability than a company with 90% of the market.
I believe that the bulk of any company's "evil" business practices are merely the tools they employ to make more money. I'm not suggesting this is the only set of values or even the best set of values, merely the set most likely to be present in the boardroom of a multinational corporation with annual revenues in the billions of dollars.
Why did I even bother hitting submit the first time? I should just keep my niggling critiques to myself so I don't have to justify them.
Having reread the article myself, I think I may have overreacted. Nevertheless, I don't think my characterization is completely out of kilter, given this passage:
She's one of 16 naive US teenagers 'persuaded' to appear in the 45-second spot which was to have reprised Apple's triumph of 1984 when, in the first Super Bowl 'event' ad, it launched the Mac.
However, the 2004 production will be remembered with shame.
The 16 teenagers were identified by the RIAA as alleged 'copyright violators' - 'alleged' because they never appeared before a judge. They, or their parents, settled out of court rather than risk much larger financial penalties had they gone head-to-head with the RIAA's heavyweight legal team, and lost.
The kids were naive? Really? It was shameful that they or their parents chose to settle out of court? As I said previously, it is one thing to criticize the advertisement itself and quite another to attack the kids and their families. Perhaps Jon Newton meant that the ad was shameful or that Apple and Pepsi's actions were shameful. But if that is the case, why place that single sentence between two paragraphs that largely discuss the actions of the kids and their families?
In any event, it's a little thing and I wasn't trying to cast aspersions on you or Newton, it was just something that struck me from my first read-through. I'm sure the mods will catch up with me anyway.
It's one thing to say the ads were crass (they were) or express concern about the bargaining power of the families relative to Apple, Pepsi and CBS. It is, however, quite another to criticize the parents and teens facing thousands of dollars in legal bills for taking the opportunity presented to them to appear in that ad and potentially pay off their bills.
I have no idea if you've commented on this elsewhere. If you have, and we're in lock-step, then please ignore my comments.
I look at it this way, the IOC turns a blind eye to Tibet so I seriously don't think something as age is important to them either. They won't do anything until the Olympics are done, let alone acknowledge it. They won't do anything if it affects how much money the IOC gets.
Except that the Tibet issue, while being a terrible stain on China, is a political issue and I'm not sure the IOC should be considering it (unless I'm unaware of some provision in their statement of goals, mission statement or whatever).
The age of competitors, however, has a direct impact on the athletic competition and is, in some ways, akin to turning a blind eye to the use of performance-enhancing drugs.
When an organization can keep others from selling fake versions of its products as if they were the real thing, that is good.
When that organization uses trademark law to keep ANYONE from making unapproved references to it (like when Ford sues to stop publication of the Black Mustang Club's calendar even if it has a disclaimer saying it's not an official Ford product) that is very, very bad.
I agree with this, but will take it one step further.
The origin of federal trademark law is in fair trade law (no use of similar marks to confuse customers). When a trademark is used to protect consumers from harm, it is fulfilling its purpose; when it is used to provide an undue and/or unfair business advantage to the holder, it harms consumers and is operating counter to its intended nature.
I read the quote as: "Market solutions might work, but we don't want to have to pay extra for a no-call flight or section. Just like smokers shouldn't be able to pay extra for a smoking flight. Critics of this trend who babble on about freedom of choice and letting the market dictate what options exist for consumers are freedom-hating terrorists."
Since Apple's entire legal argument hinges on the fact that their EULA states that OSX can only be installed on Apple-branded hardware, it will be interesting to see if the courts uphold such restrictions in EULA's, or the existence of EULA's at all.
Way to dissemble. Apple's complaint "alleges copyright infringement, induced copyright infringement, breach of contract, trademark infringement, trade dress infringement and unfair competition." Source here.
In no way, shape or form could someone who has *any* knowledge of the complaint Apple filed claim that "Apple's entire legal argument hinges on the fact that their EULA states that OSX can only be installed on Apple-branded hardware." There's a lot more to it than that.
Please note that Apple does not permit the return of or offer refunds for the following products:
Opened software (Note that you may return software after rejecting the licensing terms, provided the software is not installed on a computer. However, if your software includes a license that you can read before you break the seal or sticker on the software media packaging, you may not return the software once you break the software media packaging seal or sticker.) (emphasis added)
I wouldn't have predicted the refund policy to be that specific. I am pleasantly surprised.
Slashdot Mirror
Headline: 10 Years Later, Misunderstood DMCA Is the Law That "Saved the Web"
I felt a great disturbance in the Force, as if millions of voices of anti-copyright extremists suddenly cried out in terror and were suddenly silenced. I fear something terrible has happened.
If there was no DMCA, we wouldn't need the safe harbor.
Except for that pesky Copyright Act of 1976.
That is true, however the FCC guarantees to broadcasters the use of their designated channel *to be free from interference* of neighboring channels. That is why there is a two channel minimum gap on TV, on FM, and on AM. If stations co-existed side-by-side within the same market, they would interfere with one another. Likewise if a Whitespace Device Broadcast exists side-by-side with a TV broadcast, then the WSD's signal will "spillover" onto the existing local station, and violate that station's exclusive right to that channel.
IMHO if the FCC would not allow a TV station 16 or 18 to exist adjacent to WPHL-17, then they should not allow a WSD to be there either. The WSD should be blocked from using that entire range: 16, 17, and 18 when in the presence of WPHL. ----- And once you make that assumption, and you examine my local market near Philly, you discover there are only 4 channels that fit the criteria as open (2,3,4,25).
That is certainly a defensible position on this topic.
I don't want to get into a debate over language. I will say, however, that I think your original characterization of the situation (i.e., "there are NO unused television frequencies") is, at best, pretty misleading.
I understand that you want to define the buffer zones as "in use as buffer zones" and I want to define them as "not in use." I think there is room for debate on that topic. But, in a thread where many readers may not be as familiar with this topic as the two of us seem to be, it seems likely that your declaration of there being no open channels is somewhat disingenuous. Contrast that with my prior explanation which, for all of its flaws, at least addressed the fact that the channels are used as buffers to prevent interference even while declaring them "unused."
The flaw with that reasoning is that there are NO unused television frequencies. The entire east and west coast is densely-packed and every channel from 2 to 51 is assigned a station. In my area (near Philly) there's only 4 non-adjacent open channels (2,3,4, and 25). That's it. And only one of them is useful for small devices (25).
The only region of the United States that is truly "open" is west of the Mississippi River & east of the California border. There are lots of empty non-assigned channels (mostly 21-51), but very few people live in this area.
In the U.S., the FCC allocates spectrum for, among other things, broadcast television. When the FCC allocates spectrum for television, they do not license adjacent channels in the same geographic market. They also do not license out the same channel to broadcasters in adjacent geographic markets.
Historically, spectrum was licensed this way due to concerns that, within the same geographic market, broadcasts on adjacent channels would bleed into each other and cause interference or that, in rural areas located near the boundary between geographic markets, broadcasts on the same channel would interfere with each other.
So, in a saturated broadcast market, half of all channels lie fallow as buffer zones between broadcasters. The White Spaces Coalition advocates freeing up these buffer channels which currently lie fallow for internet access.
a LCD TV is simply an LCD monitor with a built-in tuner card.
Resolution! Resolution! Resolution!
Did you possibly mean to say that the phrase was, perhaps, redundant, maybe?
Yours Truly Yours,
The Office of the Redundancy Department
That means if little ol' grandma is getting sued by the RIAA and she says "I never downloaded any music!" but the RIAA produces some log from an ISP showing that her niece e-mailed her some Britney Spears song, well we'd have to persecute grandma for perjury.
Though I agree with your general point regarding equal application of the law, I am going to quibble with the above example. Also, I think you meant "prosecute" and not "persecute".
Black's Law Dictionary defines perjury as "The act or an instance of a person's deliberately making material false or misleading statements while under oath." Assuming a jurisdiction where this definition is used in either the common law or statutory definition of perjury, Granny (or, more likely, her lawyer) might rightfully argue that she understood the question regarding music downloads to be constrained to the use of P2P software and so did not "deliberately mak[e] false or misleading statements while under oath."
Perjury contains an element of intent for a reason. The point is not to punish mistaken testimony but to punish those who intentionally mislead the court. There are substantial policy reasons to let the former go while punishing the latter. Perhaps a better example is to say that a judge would be loathe to enforce penalties for perjury against the grandmother who is lying to protect the niece's use of Grandma's computer to download music.
Of course, my conclusion is worded a little different: People are stupid.
You might be thinking about the situation in Europe, where database compilations are copyrightable; but this doesn't apply in the US.
As with most areas of law, absolute statements are probably ill-advised...
There is nothing in current U.S. copyright law that explicitly disallows a copyright to subsist in a database; indeed courts have repeatedly treated databases as compilations. That being said, the Supreme Court's ruling in Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991) makes it clear that the scope of copyright protection for a compilation of facts is narrow. "In order to qualify, they must exhibit some modicum of creativity in the selection, arrangement, or coordination of the data." (Statement of David O. Carson, General Counsel, United States Copyright Office, see the last paragraph of section I, The History of Database Protection in the United States).
My understanding of the situation in Europe is that there are explicit statutory provisions for copyrighting databases. Congress has, so far, been pretty resistant to passing such a law, despite lobbying efforts by many commercial database operators. In any event, given the fundamental differences between U.S. and European copyright law (i.e. Utilitarian vs. natural rights origins) and the fact that originality dictates copyrightability, it is unclear to what extent a U.S. law protecting the contents of databases could be supported by the Constitution's progress clause.
Sure, it can boil down to money, but from the immediate perspective of the developer, it's about simply making our jobs easier.
Pardon my economic geek-out, but saying that you chose one platform over another because of ease still implies a cost-benefit analysis. Two examples of cost-benefit analysis that could lead to your conclusion to develop on the easier platform:
1. The difference in potential profits between the easier platform and costlier platform is low enough that you don't value the additional expenditure of effort over the minimal profit gain you may realize from the more popular platform. This might be an even more intriguing choice if your platform of choice allows you to develop multiple products in the same amount of time as it takes you to develop a single product on the more complex platform.
2. Perhaps, rather than valuing the expenditure of additional effort over profits, you value your leisure time over additional profits. This too would be an economic choice as you are foregoing the potential increased profits in exchange for additional leisure time.
My point, however, remains valid: Choosing one platform over another because the chosen platform is easier inevitably implies either an irrational choice or a choice rooted in cost-benefit analysis. If the second alternative is true, then you made a decision that can be described as economical, even if your choice was one that would lower your profits.
I'm not calling you irrational, just suggesting that an economic model can describe your actions even when you forego profits.
The thing about it is, talented developers often find themselves in the "software architect" position on projects; that is, deciding upon which platform to build a project. While popularity of a platform (and therefore the possibility of profit) does have an impact on that decision, many developers find that it's simply easier to code on open platforms, as well as obtain assistance from the community that's built up around them.
Economic reasons are not the only thing looked at, in other words.
So, if I'm understanding you correctly, you are asserting that a platform's amenability to shortened development cycles ("easier to code on") and the availability of a free development support structure ("assistance from the community") aren't "economic reasons" for picking one platform over another?
One question.
When did god create metaphorical language, before or after the creation of "heavens -- space" and "earth -- matter-energy"?
There are many reasons why the author of an EULA wouldn't want to provide a summary. For instance, California courts have held health insurance providers to descriptions of terms found in the explanatory pamphlets they give to customers, even when the pamphlet conflicts with the actual terms of the agreement.
I don't necessarily disagree with that decision, but other writers of legalese for customer consumption would be foolish not to pay attention to that type of development in the law.
On the other hand, a state could pass both law requiring such summaries be made available and granting immunity from suit over the summary's content (i.e. the summary can't be litigated, only the actual privacy policy). Of course, if the summary can't be litigated, then of what use is the law?
I could go back and forth all day...
Future law students thank everyone here for essentially suggesting the creation of yet another restatement that they will have to learn.
"Okay, class, please turn to page 361 of the 2nd Restatement of End User Usage & License Agreements. Can anyone tell my why the authors chose to expressly disallow unconscionability arguments where there is a substantial difference in consideration between parties?"
If Apple would ever come to be regarded as evil as Microsoft is. I personally believe that Apple's business practices would make them far worse than MS if they had 90% of the market instead of 7%.
They are able to survive because they are filling a niche market, leading me to believe that they will not be a serious competitor to MS anytime soon.
In the meantime I await the continual improvement of linux to cause a critical mass of marketshare so that vendors will finally start giving it proper support....
Why would you assume that Apple's business practices would even be the same if they had 90% of the market?
Because of the influence of many factors, including law, politics and even popular culture, a company with 7% of the market has significantly more maneuverability than a company with 90% of the market.
I believe that the bulk of any company's "evil" business practices are merely the tools they employ to make more money. I'm not suggesting this is the only set of values or even the best set of values, merely the set most likely to be present in the boardroom of a multinational corporation with annual revenues in the billions of dollars.
Why did I even bother hitting submit the first time? I should just keep my niggling critiques to myself so I don't have to justify them.
Having reread the article myself, I think I may have overreacted. Nevertheless, I don't think my characterization is completely out of kilter, given this passage:
She's one of 16 naive US teenagers 'persuaded' to appear in the 45-second spot which was to have reprised Apple's triumph of 1984 when, in the first Super Bowl 'event' ad, it launched the Mac.
However, the 2004 production will be remembered with shame.
The 16 teenagers were identified by the RIAA as alleged 'copyright violators' - 'alleged' because they never appeared before a judge. They, or their parents, settled out of court rather than risk much larger financial penalties had they gone head-to-head with the RIAA's heavyweight legal team, and lost.
The kids were naive? Really? It was shameful that they or their parents chose to settle out of court? As I said previously, it is one thing to criticize the advertisement itself and quite another to attack the kids and their families. Perhaps Jon Newton meant that the ad was shameful or that Apple and Pepsi's actions were shameful. But if that is the case, why place that single sentence between two paragraphs that largely discuss the actions of the kids and their families?
In any event, it's a little thing and I wasn't trying to cast aspersions on you or Newton, it was just something that struck me from my first read-through. I'm sure the mods will catch up with me anyway.
Ray, I have a lot of respect for you.
That being said, the first of your three favorite links linked to another p2pnet.net page criticizing the families of the 16 teenagers who appeared in the 2004 Apple/Pepsi iTunes Super Bowl Ads. After reading that , I'm not sure I can take anything on p2pnet.net seriously.
It's one thing to say the ads were crass (they were) or express concern about the bargaining power of the families relative to Apple, Pepsi and CBS. It is, however, quite another to criticize the parents and teens facing thousands of dollars in legal bills for taking the opportunity presented to them to appear in that ad and potentially pay off their bills.
I have no idea if you've commented on this elsewhere. If you have, and we're in lock-step, then please ignore my comments.
I look at it this way, the IOC turns a blind eye to Tibet so I seriously don't think something as age is important to them either. They won't do anything until the Olympics are done, let alone acknowledge it. They won't do anything if it affects how much money the IOC gets.
Except that the Tibet issue, while being a terrible stain on China, is a political issue and I'm not sure the IOC should be considering it (unless I'm unaware of some provision in their statement of goals, mission statement or whatever).
The age of competitors, however, has a direct impact on the athletic competition and is, in some ways, akin to turning a blind eye to the use of performance-enhancing drugs.
I think there may be prior art...
When an organization can keep others from selling fake versions of its products as if they were the real thing, that is good.
When that organization uses trademark law to keep ANYONE from making unapproved references to it (like when Ford sues to stop publication of the Black Mustang Club's calendar even if it has a disclaimer saying it's not an official Ford product) that is very, very bad.
I agree with this, but will take it one step further.
The origin of federal trademark law is in fair trade law (no use of similar marks to confuse customers). When a trademark is used to protect consumers from harm, it is fulfilling its purpose; when it is used to provide an undue and/or unfair business advantage to the holder, it harms consumers and is operating counter to its intended nature.
I read the quote as: "Market solutions might work, but we don't want to have to pay extra for a no-call flight or section. Just like smokers shouldn't be able to pay extra for a smoking flight. Critics of this trend who babble on about freedom of choice and letting the market dictate what options exist for consumers are freedom-hating terrorists."
Since Apple's entire legal argument hinges on the fact that their EULA states that OSX can only be installed on Apple-branded hardware, it will be interesting to see if the courts uphold such restrictions in EULA's, or the existence of EULA's at all.
Way to dissemble. Apple's complaint "alleges copyright infringement, induced copyright infringement, breach of contract, trademark infringement, trade dress infringement and unfair competition." Source here.
In no way, shape or form could someone who has *any* knowledge of the complaint Apple filed claim that "Apple's entire legal argument hinges on the fact that their EULA states that OSX can only be installed on Apple-branded hardware." There's a lot more to it than that.
But what ever happened to Tycho Magnetic Anomaly 1?
Please note that Apple does not permit the return of or offer refunds for the following products:
I wouldn't have predicted the refund policy to be that specific. I am pleasantly surprised.
I thought those were for placement on my car's rear window so that thieves would know to break into my car and steal my backpack...