I was reading along and contemplating whether I wanted to make an appreciative/agreeing comment, until I ran into the part about MP3s.
I believe most readers would agree that MP3 "really is patentable"
Programmers overwhelmingly reject software patents, and I think they would generally cite the MP3 patents as a perfect example of such invalid patents.
The latest Supreme Court ruling touching on software patents was Diamond v Diehr. People on the pro-patent side often point to that case to affirm their position because in a binary yes/no way the ruling was in favor of the patent applicant, but in fact Diamond v Diehr was an extremely anti software-patent ruling.
You're right about "transformation" being a crucial issue, although you somewhat miss on the "product" angle. The Supreme Court stated that the clue to the patentability of a process patent was the transformation of an article to a different state or thing. The case was ruling upon an industrial rubber manufacturing process, and all of the language is clearly envisioning a physical-process physically-transforming a physical-article into a different state or thing. Note that the end product does not need to itself be patentable. A classic process patent would be such as the one for refining aluminum-ore into pure metallic aluminum. Aluminum metal is not a patentable invention, but transforming ore into refined metal is a patentable process.
They also explicitly ruled that an algorithm was not a patentable process, and explicitly warned that "insignificant postsolution [physical] activity" cannot be used to turn it into a patentable process. The MP3 patent is nothing more than a patent on the pure-math algorithm for mathematically transforming one sequence of numbers into a different (typically shorter) sequence of numbers. The act of sending that MP3'd sequence of numbers out to a speaker (typically sounding like music) would be an extremely insignificant postsolution (post software) physical activity, and that insignificant physical activity cannot be hijacked to transform non-patentable MP3 math into a patentable physical process claim.
What the Diamond v Diehr majority ruling actual stood for was the rather simple position that an otherwise valid patentable physical process was not magically REMOVED from being patentable subject matter simply because it added or included a math calculation somewhere along that physical process.
And earlier Supreme Court ruling (Benson) had already laid out the proper method for considering a process claim that included software. Any possible algorithm (any possible software) was to be treated as a familiar part of prior art, and the claim examined to see if it disclosed any OTHER inventive contribution. You can attach a computer to some physical devices preforming some physical transformation and obtain a patent if it discloses some novel non-obvious inventive contribution beyond the presumed-familiar-presumed-prior-art software.
I would suggest that 'proofs' are fundamental to the field. This is very definitely not the case in the majority of programming.
Just because programmers generally don't engage in 'proofs' does not alter the fact that software is a pure mathematical function, and that software is indeed subject to the mathematical proof process. For example during the DeCSS DRM brouhaha I recall someone too the software for DeCSS and ran it through a mathematical theorem prover. Some of the more advanced automated software bug detection methods essentially take the software as pure math and run it through various forms of theorem provers.
Every program is a math function and is subject to all forms of mathematical analysis including theorems, however programmers don't usually mess with the theorems angle for a variety of reasons. For one, manual theorem proving is generally equally difficult or more difficult than writing software in the first place, and automated (software) theorem provers are slow and generally choke on a problem of any significant size, and the nature and complexity of typical software is such that defining "what theorem you want/need to prove" for that software the becomes almost as messy a problem as defining the software itself. For example lets say the software receives the strange command to delete the same thing twice. The problem as a programmer is anticipating and properly handling that odd input. Now consider you want to do some sort of "theorem proof" for that software.... well that theorem you're trying to prove must itself explicitly or implicitly anticipate and handle the mathematical input equating to 'deleting the same thing twice'.
You can run software through something like a theorem prover for something like memory leaks... proving something like "for any possible data input and every possible execution sequence, this program will ALWAYS correctly follow up every memory allocation with a matching command to free that memory". So you can prove certain specific things like avoiding memory leaks, but proving general software as free of generic bugs is virtually impossible because a complete definition of "correct behavior" for generic software is largely equivalent to writing the software itself.
Any possible software is, in and absolute and literal sense, nothing more than a purely mathematical function. Software is incapable of doing anything but mathematically transforming one set of numbers into a different set of numbers. For example all word processing stores text letters as numbers. If for example a is 1 and b is 2 and z is 26, then the word cat is 3 1 20. Spell check software is nothing but a very fancy math calculation that will calculate the numbers 3 1 20 ('cat') back into 3 1 20 ('cat'), but it will calculate the numbers 3 1 1 20 ('caat') into ('cat'). The old patent for the GIF files, and the current patents for MP3 and for MPEG, they are nothing but patents on the math equations for transforming one sequence of numbers into a different (usually shorter) sequence of numbers. We usually apply the MP3 math calculations to the sequence of numbers recorded from a microphone, and we usually send the MP3 sequence of numbers to a speaker, and microphones and speakers are patentable, but the MP3 patents are patents on the pure math of calculating numbers into different numbers. The famous RSA patent for asymmetric encryption, one of the most economically important developments and wildly regarded as one of the most "genuinely inventive" software patents, even that is nothing more than a patent on the math equations for transforming on sequence of numbers into a different (encrypted) sequence of numbers. It's a patent on pure math.
You can certainly ATTACH a computer to some industrial device for manufacturing rubber or preforming other physical activities, and you can certainly patent those physical devices for preforming those physical activities, but software is indeed nothing but pure math. Software is incapable of doing anything other than elaborate math calculations changing one set of numbers into a different set of numbers.
Yes yes:) The issue leading into your post was the problem of massive corporations unjustly win in court just by litigation costs wiping out the little guy, and then your post pointed to SCO being worn down into insolvency... and you post pretty explicitly placed the "blame" for that on the fact that IBM is a massive corporation rather than an individual... if someone are unaware of the special circumstances of the SCO case or if you play devils advocate.... all of the logic and the entire picture is perfectly painted to cast SCO in the victim role, losing only because of the size of big bad megacorp IBM. Which is hysterical. It's essentially correct, except for the victim/villain roles being bizarro flipped.
What are smaller broadcasters required to pay now?
Small webcasters can still use the old fee system. The old fess that was exterminating small webcasters and threatening to bankrupt large webcasters, was a certain fee per song per listener, with a $500 minimum. Under that old system a tiny college radio webcaster could only average of TWO listeners at a time at the $500 fee, and having to pay about $250 per year extra for each concurrent listener above 2. A webcaster like Pandora.com with their huger listener base was going to be hit for probably over $20 million per year.
Under the new option a major webcaster like Pandora is going to pay less than half that - about $10 million per year - but the minimum buy in for that pricing system is $25,000. The $10 million rate for a "big" webcaster like Pandora is harsh but survivable if they start limiting or billing their heaviest listeners. Small webcasters could get by pretty well if they could combine the old-option $500 minimum with the new-option billing system, but the $25,000 minimum was explicitly put in place to prohibit that. Small webcasters still gets exterminated by the $250 per year per average-listener royalty rate. Imagine in your local normal-radio broadcaster had to pay $250 per year per listener - most radio stations would be obliterated if they got hit with these staggering bills. The royalty rate for normal radio stations is not $250 per listener.... it is $zero. Only webradio has to pay these music royalties.
Unless you're philosophically opposed to paying anything, it's hard to imagine a better deal.
I agree it's a great deal, but I just want to point out that the difference between "free" and "$0.99" is a lot bigger than ninety nine cents. The hassle of stopping to actually pay one dollar over the internet generally "costs" a lot more than the dollar itself.
This is why micropayments on the internet constantly fail. I, and millions of other people, think nothing of pulling out a credit card to buy some $50 or $200 or more item over the net, but it just isn't worthwhile to screw around with credit cards or even more complex methods for something small. The physical and psychological difference between "free" and "one cent" on the internet is probably like $10 or more to most people.
Free Pandora is great, and the ad-free and higher quality $36 service is a good deal if you really use it a lot, but screwing around with one dollar credit card payments twelve times a year is a very awkward arrangement.
Given that $1/month is one third the price of $36/year, I wonder how they will get Pandora One subscribers.
The free (or $1/month) version is 128kbps and has ads. The $36 service is ad-free with higher quality 192kbps music.
They mention a few other "benefits", but they are all pretty trivial and I don't think they really count as they are nothing you couldn't do simply by customizing things on your own computer anyway.
The law defines "private performance" to be friends, family, and broadly including your social circle. Business associates and coworkers would generally fall within your social circle for parties and other socializing, but performance in any business establishment - including internal offices or an employee lounge or gym - is definitely commercial in nature.
Stores or other businesses that play music have to pay a special licensing fee. Hell, bars with TVs have complex rules and have to pay fees. I'm not sure, but a bar with a single TV below a certain size *might* be exempt from fees under certain strict limitations, but something like a sports bar with multiple large screen TVs has to pay a much bigger fee.
What you've been doing is technically against copyright law, but if I were working in your office I'd suggest someone just pay the $36/year Pandora subscription and not worry about that technicality, assuming it's some small office. If you're in some megacorp piping the music throughout the building then it would wise to go through proper channels and fees.
The $25,000 does sound very high. I'm a bit confused as to why this is considered a good deal
Lets run some approximate math. Lets call a song 4 minutes long. 15 songs an hour, 360 a day, over 130,000 a year. Multiply that by the royalty rate you cites and multiply that by an average two listeners at any given moment, and you've already hit the $500 minimum fee. If you average 100 listeners at a time you've already hit the $25,000 minimum. I tried Googling Pandora's user figures but the best figure I can find is a 2008 Washington Post report that they have about 1 million listeners daily. Just to make up a figure lets say each listener connects for two and a half hours... that would give then a hundred thousand listeners at any given moment. That works out to somewhere around $25 million royalty Pandora has to pay per year.
A tiny college net-radio with an average of just two listeners is already using up the full $500 minimum fee.
The old fees that the RIAA got the government CARP panel to set absolutely exterminate indie webradio, and would have bankrupted even a "big" internet radio corporation like Pandora. I think under the new deal Pandora will "only" have to pay about ten million dollars a year, less than half the old rate. Indie radio is locked out of the lower cost system by the $25,000 per year entrance fee.
The small webradio players and the bigger interests like Pandora were fighting to get the old killer rates struck down. By giving the "big" players this deal the RIAA have effectively removed them from the fight. Now College radio and the other little guys are on their own, and probably don't stand a chance in hell of getting the government to overturn the impossibly royalty rates set by the CARP panel, not with the RIAA lawyers and Washington lobbyists fighting to maintain them. The RIAA wants to exterminate small indie web radio because they tend to play music from small indie labels and small indie artists, and that is a threat to the RIAA machine.
Sounds like a great way to have a large, legal, on-demand music collection.
No, they put in a number of rules trying to force internet radio mimic traditional radio, to and prevent people from getting songs on-demand and prohibit people from being able to anticipate-and-record the songs they want. If someone requests a particular song netradio is prohibited from playing that song for at least one hour. You also cannot publish play lists in advance. You are also prohibited from playing.... I think the rule is at most three songs from one album within an hour... and I think it's like three or maybe five songs by one artist within an hour.... or something like that. There are also some funky complex of rules prohibiting net radio from encouraging or making it easy for listeners to save the music, although fortunately thus far the RIAA has failed in their demands to impose mandatory DRM for internet radio. I tried out Pandora quite some time ago, and it was an unspoken fact that the music was in MP3 format with the files stored in your system temp folder. The files would be auto-deleted in time, but you could go in there and find the correct numbered file and pull it out and just rename it to whatever.MP3. I presume that is still true, if you use Pandora and probably most other internet "radio", it is trivial to keep the music files if you know how. Pandora is prohibited from telling you that, but you can do it manually, or you can use some other utility to automatically move the music files out of the temp folder and rename them properly.
Who says that an agreement between one set of parties binds others who were not party to the agreement?
Congress created copyright law, and by law a copyright holder can sue you in court for copyright infringement, and the courts will enforce it and if necessary bring in gun-toting police to enforce the authority of the court.
But then it gets more complicated. Congress passed a new law specifically to deal with "internet radio" webcasting. This law set up something called CARP - the Copyright Arbitration Royalty Panel - an the law authorized this panel to listen to industry lobbyists and set "reasonable" copyright payment rates for webcasters. The panel was directed to set the rates according to what willing-buyers and willing-sellers would agree to pay on their own under normal free market conditions. The payment rates set by this panel have the force of law.
What then happened is that the RIAA represents a multi-billion dollar industry with huge influence in Washington and with an army of lawyers and with an army of lobbyists and with effective monopoly power to dictate manipulative contract terms. The RIAA then made a deal with Yahoo (and maybe one or two others others) to license Yahoo to webcast the RIAA's copyrighted music. The RIAA manipulated this deal to inflate the apparent royalty rate. The RIAA then submitted this inflated rate to CARP, as evidence of the "natural free market price that willing-buyers and willing-sellers would reach on their own", and the RIAA used all their industry power and Washington influence to influence the CARP process. Webcasting - being brand new and mostly small upstarts and things like college radio - their interests had little or no representation before the CARP panel, and of course they got STOMPED. CARP set impossibly high royalty rates webcasters had to pay. It set impossibly high rates that would exterminate both small and large webcasting. Rates that effectively prohibited any sort of internet radio.
Webcasters, both large-and-small, found themselves faced with retroactive bills they would have to pay, bills far larger than than any money they had and larger than any gross-revenues coming in from webcasting. College radio and similar small and indie webcasters would get smacked with huge retroactive bills and shut down, and larger webcasters would literally have to file for bankruptcy. Webcasters large and small all screamed that the CARP set unfair and impossibly high rates, and they increasingly got their act together as an "interest group" to challenge the CARP ruling, and it appears they were going to be successful in having to reversed.
The RIAA then made a NEW deal with large webcasters. A deal that eliminated the impossibly high per-song-per-listener fee, and allowed them to pay according to a completely different and lower cost payment system While this was a "private contract", according to the CARP system other webcasters would also have the right to opt-in to those terms if they wanted to. The terms of this contract set a vastly higher minimum fee specifically to lock out smaller webcasters. The original CARP system had a $500 minimum payment for college radio and other indie webcasters (with per-song-per-listener fees going up from there), the new deal set a $25,000 dollar yearly minimum fee.
So the RIAA has effectively split the webcaster interest group that were fighting to get the CARP rates reversed. The RIAA gave the large webcasters a deal they could survive with, and effectively eliminated the "big muscle" on the webcaster side fighting the original CARP rates. College radio and other indie webcasters lose the little corporate support and legal support and Washington lobby influence they had. The small webcasters are unlikely to be able to effectively oppose the CARP ruling on their own, and will likely be exterminated.
So small webcasters are *not* bound by this particular agreement, but they are still bound by the CARP panel fees backed by the force of Congressional law. In fact small webcaster
It appears this new agreement functions as an additional option. Anyone using this new deal have a $25,000 minimum payment, but webcasters can still stay with the old deal with the $500 minimum.
The reason for the new deal is that under the old deal webcasters had to pay a certain fee per song times the number of listeners, and that the figure was so high it would have exterminated both small and large webcasters.
So small webcasters do not have to pay this $25,000 minimum, they can stick with the old crushingly high per-song-per-listener figures. All of the webcasters were united in bringing a legal challenge against those impossibly high royalty rates, rates that would exterminate small webcasters and bankrupt large webcasters. This deal permits large webcasters to survive under a completely different and much better payment system, while locking small webcasters out of the lower cost deal with the $25,000 entrance fee.
By giving the large webcasters - and only large webcasters - a special deal with reasonable rates, the RIAA in now likely to be able to keep the old impossibly high royalty rates in place to kill off small webcasters. Without the "big muscle" of the large webcasters on their side opposing those impossibly high rates, small webcasters are unlikely to be able to afford lobbyists to represent their interests in Washington and before the Copyright Arbitration Royalty Panel or in court.
Slashdot story seems to be in error. The amount should be $500, not $25,000
There was a 2007 agreement setting the minimum at $500, and at the moment the Wikipedia article is reporting that OLD figure.
The linked story is on a NEW agreement, and it states the NEW minimum is $25,000.
The RIAA came to an agreement with the handful of largest webcasters to set government rules to exterminate the pesky small webcasters who have the annoying habit of playing a lot of non-RIAA indie music.
Furthermore, if the record label listed is a company you've never heard of, that should be another warning sign.
That sounds to me like it's bordering on an anti-trust violation, smearing the smaller non-RIAA music labels as illegitimate and illegal. I haven't bought any RIAA CDs in years because they've been acting like dickwads, but even before they started acting like dickwads most of the CDs I bought *were* from record labels I'd never heard of. I did buy some "top 40 pop" stuff, but for the most part the RIAA labels just didn't carry what I wanted, and the "unheard of" indie labels did.
Last I checked you normally don't get jail time for copyright infringement.
You're right that they don't normally engage in criminal prosecution, but the law does in fact criminalize most common simple infringement. Specifically NET act redefined "financial gain" to include the receipt or expectation of receipt of anything of value, including other copyrighted works. Effectively anyone who has ever touched P2P is technically guilty of criminal infringement and subject to up to a year in prison, or up to 3 years if it's more than a handful of files. Australian law has up to a 2 year prison term for simple common P2P, and the US has been pushing for a directive requiring criminal penalties for "commercial scale" infringement - where "commercial scale" is a euphemism for "on the internet".
Close... but you missed the trick the copyright industry lawyers pulled when they wrote the bill (yeah, the NET act and most recent US copyright legislation has literally been drafted by lawyers employed by industry lawyers).
The first thing that law does is redefine "financial gain" to include receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.
For example if you have ever touched P2P software you are pretty much automatically a felon subject to a year in prison, and generally three years if it's more than a handful of files. The only way you *don't* fall under the criminal penalties is in comical case of specifically sharing files for upload and never downloading so much as a single file, and specifically intending to never download even a single file.
What the is actually doing defining up to one year in prison regardless of dollar value, and the dollar figures in part 2 increasing the penalty to three years in prison.
In 1998 the NET act REDEFINED "financial gain" to include "receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works". Anyone who has ever used P2P, or has swapped old school mix tapes with a friend, actually falls within the harsh "commercial infringement" criminal statutes.
The only copyright infringements that qualify as criminal acts (from the section you cited) are commercial infringers (the guys selling counterfeit DVDs) or people who leak material pre-release
In 1998 the NET act REDEFINED "financial gain" to include "receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works". Anyone who has every used P2P, or has swapped old school mix tapes with a friend, actually falls within the harsh "commercial infringement" criminal statutes.
Moreover, in the US, mere DOWNLOADING is not infringement at all
The creation of a copy is a violation of the copyright reproduction right. I agree that the person SENDING a file is the one who knows the actual contents, and is the only one who knows if he is authorized to send it, and that it makes infinitely more sense to place the legal responsibility on that end, but under US law and the law of pretty well ever other country on earth, the person on the downloading end is indeed violating the law. If I send you a copyrighted work and I tell you I am an authorized distributor for that work when I'm not, or even if I tell you I'm sending a public-domain work and I instead send a different infringing copyrighted work, under US law you are technically liable for copyright infringement for downloading and creating a copy of that work. The "good news" is that the law does have a specific clause for you to then claim you are an "innocent infringer". The legal burden is upon YOU to prove in court your innocent infringer status, and if you succeed the result is that the usual $750 minimum-per-work damages is lowered to a $200-minimum-per work damages. Even if you prove your "innocent infringer" status you are still legally guilty of infringement and still hit with a $200 minimum damages per work.
I'm not DEFENDING that law - but yes that is in fact what US copyright law says. The nation would grind to a complete halt if we were to fully enforce all of the insane facts of our copyright law.
Typically the worst that you can be hit for with copyright violation is fines
Incorrect. The US at least has long had criminal penalties for serious commercial infringement operations... and for the last several years congress has been passing legislation that has been LITERALLY written by the lawyers employed by the copyright industry. Not only is that text written to openly pander to the copyright industry's demands, those industry lawyers slipped a number of trick clauses into the text. One such example is in the N.E.T. Act where they slipped in a redefinition of the term "financial gain" which magically swept virtually all P2P usage (and even old school mix-tape trading) under the commercial-infringement criminal statutes. Under US law virtually everyone who has ever touched a P2P app (or traded mix-tapes with a friend) is technically a felon subject to a year - and in most cases up to three years - in prison. Probably something like 20 percent of the population or more is technically guilty of felony criminal copyright infringement. Probably 80 to 100 percent of the people here on Slashdot are guilty of felony criminal copyright infringement.... guilty under the felony commercial-infringement statutes for committing infringement for "financial gain" under the new definition. We would need to build five to ten times as many prison cells to hold many tens of millions of people for the next one-to-three tears.
A note to those across the rest of the world, many other countries have done the same thing or are being heavily lobbied to do the same thing, often under the phrase "commercial scale" infringement. By adding "or commercial scale infringement" to the law, any infringement involving the internet gets swept under the hard criminal laws supposedly reserved for major commercial piracy operations. For example Australia added a "commercial scale" clause to their law punishable by up to 5 years in prison, or up to to two years for an individual who commits commercial scale infringement through "negligence". Oh gee, how REASONABLE of them.... children who have an infringing music file in a P2P share folder or who put an infringing file on their webpage... the law generously says they only face TWO years instead of five years for their special-case merely individual act of merely negligent infringement on a "commercial scale".
I'm not up to date on the latest activity, but the European Union has repeatedly been pushing for a directive that would not only criminalize "commercial scale" infringement, it would criminalize attempting, aiding, abetting, or inciting "commercial scale" infringement. Not just P2P software, but FTP and webserver and all sorts of routine internet-related software programming potentially becomes criminal. Last I heard one part of the EU legislature had actually voted to passed this law, but that it failed or stalled in another part of the process.
Oh yeah? Well I'M going to use MY replicator make an army of TWO billion giant space pandas with a taste for venomous-crocodile blood!
And THEN I'm going to make an army of NINE HUNDRED NINTY NINE billion teleporting ants with titanium jaws, with a taste for devouring everyone else's replicators! Muahahahahahah!
Ok, will the US Supreme Court be an acceptable source for citation?
the Government's theory here would make theft, conversion, or fraud equivalent to wrongful appropriation of statutorily protected rights in copyright. The copyright owner, however, holds no ordinary chattel.... the property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple 'goods, wares, merchandise'... It follows that interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: "'Anyone who violates any of the exclusive rights of the copyright owner,' that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute, 'is an infringer of the copyright.'"
The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: 'Anyone who violates any of the exclusive rights of the copyright owner,' that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute, 'is an infringer of the copyright.
The phonorecords in question were not "stolen, converted or taken by fraud" for purposes of 2314. The section's language clearly contemplates a physical identity between the items unlawfully obtained and those eventually transported, and hence some prior physical taking of the subject goods. Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple "goods, wares, merchandise," interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use.
There is no dispute in this case that Dowling's unauthorized inclusion on his bootleg albums of performances of copyrighted compositions constituted infringement of those copyrights. It is less clear, however, that the taking that occurs when an infringer arrogates the use of another's protected work comfortably fits the terms associated with physical removal employed by 2314. The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use. While one may colloquially link infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft
the copyright holder owns only a bundle of intangible rights which can be infringed, but not stolen
I've read a fair number of these 'City-X provides free internet' stories, and as far as I can tell they all have something in common... they all require everyone to to register their identity with the government and log on with a username-password.
To my ears, thats like the government setting up a free water fountain in a park and requiring people to swipe a drivers license or other ID in order to unlock the water. In fact it sounds to me like they are SPENDING who-knows-how-much EXTRA money to buy and maintain the ID scanner and weld it to the water fountain.
Is it jut me, or are there others out there thinking that free public water fountains (and free public public access WiFi points) should simply be open?
Slashdot Mirror
I was reading along and contemplating whether I wanted to make an appreciative/agreeing comment, until I ran into the part about MP3s.
I believe most readers would agree that MP3 "really is patentable"
Programmers overwhelmingly reject software patents, and I think they would generally cite the MP3 patents as a perfect example of such invalid patents.
The latest Supreme Court ruling touching on software patents was Diamond v Diehr. People on the pro-patent side often point to that case to affirm their position because in a binary yes/no way the ruling was in favor of the patent applicant, but in fact Diamond v Diehr was an extremely anti software-patent ruling.
You're right about "transformation" being a crucial issue, although you somewhat miss on the "product" angle. The Supreme Court stated that the clue to the patentability of a process patent was the transformation of an article to a different state or thing. The case was ruling upon an industrial rubber manufacturing process, and all of the language is clearly envisioning a physical-process physically-transforming a physical-article into a different state or thing. Note that the end product does not need to itself be patentable. A classic process patent would be such as the one for refining aluminum-ore into pure metallic aluminum. Aluminum metal is not a patentable invention, but transforming ore into refined metal is a patentable process.
They also explicitly ruled that an algorithm was not a patentable process, and explicitly warned that "insignificant postsolution [physical] activity" cannot be used to turn it into a patentable process. The MP3 patent is nothing more than a patent on the pure-math algorithm for mathematically transforming one sequence of numbers into a different (typically shorter) sequence of numbers. The act of sending that MP3'd sequence of numbers out to a speaker (typically sounding like music) would be an extremely insignificant postsolution (post software) physical activity, and that insignificant physical activity cannot be hijacked to transform non-patentable MP3 math into a patentable physical process claim.
What the Diamond v Diehr majority ruling actual stood for was the rather simple position that an otherwise valid patentable physical process was not magically REMOVED from being patentable subject matter simply because it added or included a math calculation somewhere along that physical process.
And earlier Supreme Court ruling (Benson) had already laid out the proper method for considering a process claim that included software. Any possible algorithm (any possible software) was to be treated as a familiar part of prior art, and the claim examined to see if it disclosed any OTHER inventive contribution. You can attach a computer to some physical devices preforming some physical transformation and obtain a patent if it discloses some novel non-obvious inventive contribution beyond the presumed-familiar-presumed-prior-art software.
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I would suggest that 'proofs' are fundamental to the field. This is very definitely not the case in the majority of programming.
Just because programmers generally don't engage in 'proofs' does not alter the fact that software is a pure mathematical function, and that software is indeed subject to the mathematical proof process. For example during the DeCSS DRM brouhaha I recall someone too the software for DeCSS and ran it through a mathematical theorem prover. Some of the more advanced automated software bug detection methods essentially take the software as pure math and run it through various forms of theorem provers.
Every program is a math function and is subject to all forms of mathematical analysis including theorems, however programmers don't usually mess with the theorems angle for a variety of reasons. For one, manual theorem proving is generally equally difficult or more difficult than writing software in the first place, and automated (software) theorem provers are slow and generally choke on a problem of any significant size, and the nature and complexity of typical software is such that defining "what theorem you want/need to prove" for that software the becomes almost as messy a problem as defining the software itself. For example lets say the software receives the strange command to delete the same thing twice. The problem as a programmer is anticipating and properly handling that odd input. Now consider you want to do some sort of "theorem proof" for that software.... well that theorem you're trying to prove must itself explicitly or implicitly anticipate and handle the mathematical input equating to 'deleting the same thing twice'.
You can run software through something like a theorem prover for something like memory leaks... proving something like "for any possible data input and every possible execution sequence, this program will ALWAYS correctly follow up every memory allocation with a matching command to free that memory". So you can prove certain specific things like avoiding memory leaks, but proving general software as free of generic bugs is virtually impossible because a complete definition of "correct behavior" for generic software is largely equivalent to writing the software itself.
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Any possible software is, in and absolute and literal sense, nothing more than a purely mathematical function. Software is incapable of doing anything but mathematically transforming one set of numbers into a different set of numbers. For example all word processing stores text letters as numbers. If for example a is 1 and b is 2 and z is 26, then the word cat is 3 1 20. Spell check software is nothing but a very fancy math calculation that will calculate the numbers 3 1 20 ('cat') back into 3 1 20 ('cat'), but it will calculate the numbers 3 1 1 20 ('caat') into ('cat'). The old patent for the GIF files, and the current patents for MP3 and for MPEG, they are nothing but patents on the math equations for transforming one sequence of numbers into a different (usually shorter) sequence of numbers. We usually apply the MP3 math calculations to the sequence of numbers recorded from a microphone, and we usually send the MP3 sequence of numbers to a speaker, and microphones and speakers are patentable, but the MP3 patents are patents on the pure math of calculating numbers into different numbers. The famous RSA patent for asymmetric encryption, one of the most economically important developments and wildly regarded as one of the most "genuinely inventive" software patents, even that is nothing more than a patent on the math equations for transforming on sequence of numbers into a different (encrypted) sequence of numbers. It's a patent on pure math.
You can certainly ATTACH a computer to some industrial device for manufacturing rubber or preforming other physical activities, and you can certainly patent those physical devices for preforming those physical activities, but software is indeed nothing but pure math. Software is incapable of doing anything other than elaborate math calculations changing one set of numbers into a different set of numbers.
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Yes yes :) The issue leading into your post was the problem of massive corporations unjustly win in court just by litigation costs wiping out the little guy, and then your post pointed to SCO being worn down into insolvency... and you post pretty explicitly placed the "blame" for that on the fact that IBM is a massive corporation rather than an individual... if someone are unaware of the special circumstances of the SCO case or if you play devils advocate.... all of the logic and the entire picture is perfectly painted to cast SCO in the victim role, losing only because of the size of big bad megacorp IBM. Which is hysterical. It's essentially correct, except for the victim/villain roles being bizarro flipped.
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What are smaller broadcasters required to pay now?
Small webcasters can still use the old fee system. The old fess that was exterminating small webcasters and threatening to bankrupt large webcasters, was a certain fee per song per listener, with a $500 minimum. Under that old system a tiny college radio webcaster could only average of TWO listeners at a time at the $500 fee, and having to pay about $250 per year extra for each concurrent listener above 2. A webcaster like Pandora.com with their huger listener base was going to be hit for probably over $20 million per year.
Under the new option a major webcaster like Pandora is going to pay less than half that - about $10 million per year - but the minimum buy in for that pricing system is $25,000. The $10 million rate for a "big" webcaster like Pandora is harsh but survivable if they start limiting or billing their heaviest listeners. Small webcasters could get by pretty well if they could combine the old-option $500 minimum with the new-option billing system, but the $25,000 minimum was explicitly put in place to prohibit that. Small webcasters still gets exterminated by the $250 per year per average-listener royalty rate. Imagine in your local normal-radio broadcaster had to pay $250 per year per listener - most radio stations would be obliterated if they got hit with these staggering bills. The royalty rate for normal radio stations is not $250 per listener.... it is $zero. Only webradio has to pay these music royalties.
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Unless you're philosophically opposed to paying anything, it's hard to imagine a better deal.
I agree it's a great deal, but I just want to point out that the difference between "free" and "$0.99" is a lot bigger than ninety nine cents. The hassle of stopping to actually pay one dollar over the internet generally "costs" a lot more than the dollar itself.
This is why micropayments on the internet constantly fail. I, and millions of other people, think nothing of pulling out a credit card to buy some $50 or $200 or more item over the net, but it just isn't worthwhile to screw around with credit cards or even more complex methods for something small. The physical and psychological difference between "free" and "one cent" on the internet is probably like $10 or more to most people.
Free Pandora is great, and the ad-free and higher quality $36 service is a good deal if you really use it a lot, but screwing around with one dollar credit card payments twelve times a year is a very awkward arrangement.
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Given that $1/month is one third the price of $36/year, I wonder how they will get Pandora One subscribers.
The free (or $1/month) version is 128kbps and has ads. The $36 service is ad-free with higher quality 192kbps music.
They mention a few other "benefits", but they are all pretty trivial and I don't think they really count as they are nothing you couldn't do simply by customizing things on your own computer anyway.
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The law defines "private performance" to be friends, family, and broadly including your social circle. Business associates and coworkers would generally fall within your social circle for parties and other socializing, but performance in any business establishment - including internal offices or an employee lounge or gym - is definitely commercial in nature.
Stores or other businesses that play music have to pay a special licensing fee. Hell, bars with TVs have complex rules and have to pay fees. I'm not sure, but a bar with a single TV below a certain size *might* be exempt from fees under certain strict limitations, but something like a sports bar with multiple large screen TVs has to pay a much bigger fee.
What you've been doing is technically against copyright law, but if I were working in your office I'd suggest someone just pay the $36/year Pandora subscription and not worry about that technicality, assuming it's some small office. If you're in some megacorp piping the music throughout the building then it would wise to go through proper channels and fees.
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The $25,000 does sound very high. I'm a bit confused as to why this is considered a good deal
Lets run some approximate math. Lets call a song 4 minutes long. 15 songs an hour, 360 a day, over 130,000 a year. Multiply that by the royalty rate you cites and multiply that by an average two listeners at any given moment, and you've already hit the $500 minimum fee. If you average 100 listeners at a time you've already hit the $25,000 minimum. I tried Googling Pandora's user figures but the best figure I can find is a 2008 Washington Post report that they have about 1 million listeners daily. Just to make up a figure lets say each listener connects for two and a half hours... that would give then a hundred thousand listeners at any given moment. That works out to somewhere around $25 million royalty Pandora has to pay per year.
A tiny college net-radio with an average of just two listeners is already using up the full $500 minimum fee.
The old fees that the RIAA got the government CARP panel to set absolutely exterminate indie webradio, and would have bankrupted even a "big" internet radio corporation like Pandora. I think under the new deal Pandora will "only" have to pay about ten million dollars a year, less than half the old rate. Indie radio is locked out of the lower cost system by the $25,000 per year entrance fee.
The small webradio players and the bigger interests like Pandora were fighting to get the old killer rates struck down. By giving the "big" players this deal the RIAA have effectively removed them from the fight. Now College radio and the other little guys are on their own, and probably don't stand a chance in hell of getting the government to overturn the impossibly royalty rates set by the CARP panel, not with the RIAA lawyers and Washington lobbyists fighting to maintain them. The RIAA wants to exterminate small indie web radio because they tend to play music from small indie labels and small indie artists, and that is a threat to the RIAA machine.
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Sounds like a great way to have a large, legal, on-demand music collection.
No, they put in a number of rules trying to force internet radio mimic traditional radio, to and prevent people from getting songs on-demand and prohibit people from being able to anticipate-and-record the songs they want. If someone requests a particular song netradio is prohibited from playing that song for at least one hour. You also cannot publish play lists in advance. You are also prohibited from playing.... I think the rule is at most three songs from one album within an hour... and I think it's like three or maybe five songs by one artist within an hour.... or something like that. There are also some funky complex of rules prohibiting net radio from encouraging or making it easy for listeners to save the music, although fortunately thus far the RIAA has failed in their demands to impose mandatory DRM for internet radio. I tried out Pandora quite some time ago, and it was an unspoken fact that the music was in MP3 format with the files stored in your system temp folder. The files would be auto-deleted in time, but you could go in there and find the correct numbered file and pull it out and just rename it to whatever.MP3. I presume that is still true, if you use Pandora and probably most other internet "radio", it is trivial to keep the music files if you know how. Pandora is prohibited from telling you that, but you can do it manually, or you can use some other utility to automatically move the music files out of the temp folder and rename them properly.
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if IBM were an individual person instead of the massive corporation it is, SCO would have one simply by wearing them down into insolvency.
You mean the case where massive corporation IBM is wearing SCO down into insolvency?
Sorry, that tickled my seriously twisted sense of humor.
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Who says that an agreement between one set of parties binds others who were not party to the agreement?
Congress created copyright law, and by law a copyright holder can sue you in court for copyright infringement, and the courts will enforce it and if necessary bring in gun-toting police to enforce the authority of the court.
But then it gets more complicated. Congress passed a new law specifically to deal with "internet radio" webcasting. This law set up something called CARP - the Copyright Arbitration Royalty Panel - an the law authorized this panel to listen to industry lobbyists and set "reasonable" copyright payment rates for webcasters. The panel was directed to set the rates according to what willing-buyers and willing-sellers would agree to pay on their own under normal free market conditions. The payment rates set by this panel have the force of law.
What then happened is that the RIAA represents a multi-billion dollar industry with huge influence in Washington and with an army of lawyers and with an army of lobbyists and with effective monopoly power to dictate manipulative contract terms. The RIAA then made a deal with Yahoo (and maybe one or two others others) to license Yahoo to webcast the RIAA's copyrighted music. The RIAA manipulated this deal to inflate the apparent royalty rate. The RIAA then submitted this inflated rate to CARP, as evidence of the "natural free market price that willing-buyers and willing-sellers would reach on their own", and the RIAA used all their industry power and Washington influence to influence the CARP process. Webcasting - being brand new and mostly small upstarts and things like college radio - their interests had little or no representation before the CARP panel, and of course they got STOMPED. CARP set impossibly high royalty rates webcasters had to pay. It set impossibly high rates that would exterminate both small and large webcasting. Rates that effectively prohibited any sort of internet radio.
Webcasters, both large-and-small, found themselves faced with retroactive bills they would have to pay, bills far larger than than any money they had and larger than any gross-revenues coming in from webcasting. College radio and similar small and indie webcasters would get smacked with huge retroactive bills and shut down, and larger webcasters would literally have to file for bankruptcy. Webcasters large and small all screamed that the CARP set unfair and impossibly high rates, and they increasingly got their act together as an "interest group" to challenge the CARP ruling, and it appears they were going to be successful in having to reversed.
The RIAA then made a NEW deal with large webcasters. A deal that eliminated the impossibly high per-song-per-listener fee, and allowed them to pay according to a completely different and lower cost payment system While this was a "private contract", according to the CARP system other webcasters would also have the right to opt-in to those terms if they wanted to. The terms of this contract set a vastly higher minimum fee specifically to lock out smaller webcasters. The original CARP system had a $500 minimum payment for college radio and other indie webcasters (with per-song-per-listener fees going up from there), the new deal set a $25,000 dollar yearly minimum fee.
So the RIAA has effectively split the webcaster interest group that were fighting to get the CARP rates reversed. The RIAA gave the large webcasters a deal they could survive with, and effectively eliminated the "big muscle" on the webcaster side fighting the original CARP rates. College radio and other indie webcasters lose the little corporate support and legal support and Washington lobby influence they had. The small webcasters are unlikely to be able to effectively oppose the CARP ruling on their own, and will likely be exterminated.
So small webcasters are *not* bound by this particular agreement, but they are still bound by the CARP panel fees backed by the force of Congressional law. In fact small webcaster
The LA Times has more info.
It appears this new agreement functions as an additional option. Anyone using this new deal have a $25,000 minimum payment, but webcasters can still stay with the old deal with the $500 minimum.
The reason for the new deal is that under the old deal webcasters had to pay a certain fee per song times the number of listeners, and that the figure was so high it would have exterminated both small and large webcasters.
So small webcasters do not have to pay this $25,000 minimum, they can stick with the old crushingly high per-song-per-listener figures. All of the webcasters were united in bringing a legal challenge against those impossibly high royalty rates, rates that would exterminate small webcasters and bankrupt large webcasters. This deal permits large webcasters to survive under a completely different and much better payment system, while locking small webcasters out of the lower cost deal with the $25,000 entrance fee.
By giving the large webcasters - and only large webcasters - a special deal with reasonable rates, the RIAA in now likely to be able to keep the old impossibly high royalty rates in place to kill off small webcasters. Without the "big muscle" of the large webcasters on their side opposing those impossibly high rates, small webcasters are unlikely to be able to afford lobbyists to represent their interests in Washington and before the Copyright Arbitration Royalty Panel or in court.
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Slashdot story seems to be in error. The amount should be $500, not $25,000
There was a 2007 agreement setting the minimum at $500, and at the moment the Wikipedia article is reporting that OLD figure.
The linked story is on a NEW agreement, and it states the NEW minimum is $25,000.
The RIAA came to an agreement with the handful of largest webcasters to set government rules to exterminate the pesky small webcasters who have the annoying habit of playing a lot of non-RIAA indie music.
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There's an even worse one in there. How about:
Furthermore, if the record label listed is a company you've never heard of, that should be another warning sign.
That sounds to me like it's bordering on an anti-trust violation, smearing the smaller non-RIAA music labels as illegitimate and illegal. I haven't bought any RIAA CDs in years because they've been acting like dickwads, but even before they started acting like dickwads most of the CDs I bought *were* from record labels I'd never heard of. I did buy some "top 40 pop" stuff, but for the most part the RIAA labels just didn't carry what I wanted, and the "unheard of" indie labels did.
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Oops, when I said "the US has been pushing for a directive", I meant the EU. A European Union directive.
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Last I checked you normally don't get jail time for copyright infringement.
You're right that they don't normally engage in criminal prosecution, but the law does in fact criminalize most common simple infringement. Specifically NET act redefined "financial gain" to include the receipt or expectation of receipt of anything of value, including other copyrighted works. Effectively anyone who has ever touched P2P is technically guilty of criminal infringement and subject to up to a year in prison, or up to 3 years if it's more than a handful of files. Australian law has up to a 2 year prison term for simple common P2P, and the US has been pushing for a directive requiring criminal penalties for "commercial scale" infringement - where "commercial scale" is a euphemism for "on the internet".
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Close... but you missed the trick the copyright industry lawyers pulled when they wrote the bill (yeah, the NET act and most recent US copyright legislation has literally been drafted by lawyers employed by industry lawyers).
The first thing that law does is redefine "financial gain" to include receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.
For example if you have ever touched P2P software you are pretty much automatically a felon subject to a year in prison, and generally three years if it's more than a handful of files. The only way you *don't* fall under the criminal penalties is in comical case of specifically sharing files for upload and never downloading so much as a single file, and specifically intending to never download even a single file.
What the is actually doing defining up to one year in prison regardless of dollar value, and the dollar figures in part 2 increasing the penalty to three years in prison.
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Unfortunately you're wrong about that.
In 1998 the NET act REDEFINED "financial gain" to include "receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works". Anyone who has ever used P2P, or has swapped old school mix tapes with a friend, actually falls within the harsh "commercial infringement" criminal statutes.
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The only copyright infringements that qualify as criminal acts (from the section you cited) are commercial infringers (the guys selling counterfeit DVDs) or people who leak material pre-release
In 1998 the NET act REDEFINED "financial gain" to include "receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works". Anyone who has every used P2P, or has swapped old school mix tapes with a friend, actually falls within the harsh "commercial infringement" criminal statutes.
Moreover, in the US, mere DOWNLOADING is not infringement at all
The creation of a copy is a violation of the copyright reproduction right. I agree that the person SENDING a file is the one who knows the actual contents, and is the only one who knows if he is authorized to send it, and that it makes infinitely more sense to place the legal responsibility on that end, but under US law and the law of pretty well ever other country on earth, the person on the downloading end is indeed violating the law. If I send you a copyrighted work and I tell you I am an authorized distributor for that work when I'm not, or even if I tell you I'm sending a public-domain work and I instead send a different infringing copyrighted work, under US law you are technically liable for copyright infringement for downloading and creating a copy of that work. The "good news" is that the law does have a specific clause for you to then claim you are an "innocent infringer". The legal burden is upon YOU to prove in court your innocent infringer status, and if you succeed the result is that the usual $750 minimum-per-work damages is lowered to a $200-minimum-per work damages. Even if you prove your "innocent infringer" status you are still legally guilty of infringement and still hit with a $200 minimum damages per work.
I'm not DEFENDING that law - but yes that is in fact what US copyright law says. The nation would grind to a complete halt if we were to fully enforce all of the insane facts of our copyright law.
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Typically the worst that you can be hit for with copyright violation is fines
Incorrect. The US at least has long had criminal penalties for serious commercial infringement operations... and for the last several years congress has been passing legislation that has been LITERALLY written by the lawyers employed by the copyright industry. Not only is that text written to openly pander to the copyright industry's demands, those industry lawyers slipped a number of trick clauses into the text. One such example is in the N.E.T. Act where they slipped in a redefinition of the term "financial gain" which magically swept virtually all P2P usage (and even old school mix-tape trading) under the commercial-infringement criminal statutes. Under US law virtually everyone who has ever touched a P2P app (or traded mix-tapes with a friend) is technically a felon subject to a year - and in most cases up to three years - in prison. Probably something like 20 percent of the population or more is technically guilty of felony criminal copyright infringement. Probably 80 to 100 percent of the people here on Slashdot are guilty of felony criminal copyright infringement.... guilty under the felony commercial-infringement statutes for committing infringement for "financial gain" under the new definition. We would need to build five to ten times as many prison cells to hold many tens of millions of people for the next one-to-three tears.
A note to those across the rest of the world, many other countries have done the same thing or are being heavily lobbied to do the same thing, often under the phrase "commercial scale" infringement. By adding "or commercial scale infringement" to the law, any infringement involving the internet gets swept under the hard criminal laws supposedly reserved for major commercial piracy operations. For example Australia added a "commercial scale" clause to their law punishable by up to 5 years in prison, or up to to two years for an individual who commits commercial scale infringement through "negligence". Oh gee, how REASONABLE of them.... children who have an infringing music file in a P2P share folder or who put an infringing file on their webpage... the law generously says they only face TWO years instead of five years for their special-case merely individual act of merely negligent infringement on a "commercial scale".
I'm not up to date on the latest activity, but the European Union has repeatedly been pushing for a directive that would not only criminalize "commercial scale" infringement, it would criminalize attempting, aiding, abetting, or inciting "commercial scale" infringement. Not just P2P software, but FTP and webserver and all sorts of routine internet-related software programming potentially becomes criminal. Last I heard one part of the EU legislature had actually voted to passed this law, but that it failed or stalled in another part of the process.
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Oh yeah? Well I'M going to use MY replicator make an army of TWO billion giant space pandas with a taste for venomous-crocodile blood!
And THEN I'm going to make an army of NINE HUNDRED NINTY NINE billion teleporting ants with titanium jaws, with a taste for devouring everyone else's replicators! Muahahahahahah!
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[shitload of citations needed]
Ok, will the US Supreme Court be an acceptable source for citation?
the Government's theory here would make theft, conversion, or fraud equivalent to wrongful appropriation of statutorily protected rights in copyright. The copyright owner, however, holds no ordinary chattel.... the property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple 'goods, wares, merchandise'... It follows that interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: "'Anyone who violates any of the exclusive rights of the copyright owner,' that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute, 'is an infringer of the copyright.'"
The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: 'Anyone who violates any of the exclusive rights of the copyright owner,' that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute, 'is an infringer of the copyright.
The phonorecords in question were not "stolen, converted or taken by fraud" for purposes of 2314. The section's language clearly contemplates a physical identity between the items unlawfully obtained and those eventually transported, and hence some prior physical taking of the subject goods. Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple "goods, wares, merchandise," interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use.
There is no dispute in this case that Dowling's unauthorized inclusion on his bootleg albums of performances of copyrighted compositions constituted infringement of those copyrights. It is less clear, however, that the taking that occurs when an infringer arrogates the use of another's protected work comfortably fits the terms associated with physical removal employed by 2314. The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use. While one may colloquially link infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft
the copyright holder owns only a bundle of intangible rights which can be infringed, but not stolen
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We would need a second set of ears on our ankles for echolocation to be practical.
The delivery room doctor told my mother it was a "defect".
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I've read a fair number of these 'City-X provides free internet' stories, and as far as I can tell they all have something in common... they all require everyone to to register their identity with the government and log on with a username-password.
To my ears, thats like the government setting up a free water fountain in a park and requiring people to swipe a drivers license or other ID in order to unlock the water. In fact it sounds to me like they are SPENDING who-knows-how-much EXTRA money to buy and maintain the ID scanner and weld it to the water fountain.
Is it jut me, or are there others out there thinking that free public water fountains (and free public public access WiFi points) should simply be open?
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