One of the misunderstandings of 'fair use' is that it creates an affirmative right to do the thing in question. It does not. 'Fair use' is an affirmative defense to copyright infringement, it means that if someone sues you for violating their copyright, you can counter by saying "what I did is fair use" -- it functions as an exception to the criminal/civil statute.
Aha, that's different from how it works here in Sweden. Our copyright law simply states that it applies to a number of areas, with a number of exceptions, and anything covered by the exceptions, like making copies for personal use, is simply not illegal. I'm not sure how it works in other European countries.
There's still no obligation on the part of the copyright holders to make it possible for the consumer to exercise those rights, though. They are free to implement whatever copy protection they want. We have even been forced (by the European Union) to implement a law against circumvention similar to the provisions in the DMCA. Fortunately, it looks like it's still legal to circumvent protection that prevents the consumer from enjoying their music or movie on the player of their choice (like a standard MP3 player or a computer with Linux).
Speaking of which, are there "WYSIWYG" languages, where there's a clear one-to-one match between written and spoken words?
There certainly are. It's sometimes called "phonetic spelling". Finnish is one of the languages which has it, and It even goes as far as using double letters for long sounds and single letters for short sounds. (A long 'a' sound is spelled 'aa', for example.) Finns also make sure to adapt all loanwords to their own spelling rules.
English has unusually complicated spelling, due to loaning a very large number of words from French, Latin and other languages without standardizing their spellings.
German doesn't have a one-to-one correspondence between letters and sounds, but the same sounds are always spelled the same way. For example, the "eu" combination in German words like "Deutsch" is always pronounced like the "oi" in the English word "coin", and vice versa.
I overheard a conversation Linus had at the campus cafeteria back in 1990, when the Linux kernel was just an idea in his head. During the conversation, I wrote down the machine code on a napkin and executed it by hand, using a couple of salt shakers to keep track of the status registers.
You youngsters think you need a lot of expensive hardware to run software, but let me tell you, back in those days, we learnt to use our heads!
I think you're missing the point... the court ruled that it was libel regardless of whether the guy was actually guilty of stealing. That will set a precedent for treating some true statements as slander, even if it later turns out that this particular guy was innocent.
That's your opinion, good. My opinion is that they are only as valid as we allow them to be. They are unconscionable, primarily because they are not presented until after the sale is complete and attempt to impose conditions and restrictions that were not agreed upon at the time of the sale.
In my country, Sweden, the law is very clear about this (at least for consumers): The terms of the sale are the terms agreed upon when the sale is complete, and the sale is considered complete at the latest when the customer has paid for and received the goods.
It's not possible for the seller to impose additional terms on the consumer after the sale is complete. Since shrink-wrap licenses are not presented to the consumer until after the sale, they are not part of the sales agreement, and are no more than fancy toilet paper.
Also, the consumer only has an agreement with the reseller, not with the software supplier, unless something else was explicitly agreed upon before the sale was complete. It is not necessary for the consumer to enter into an agreement with the software supplier in order to use the software, since Swedish copyright law explicitly allows one to make temporary copies of the sotware in the computer's memory when necessary for its use.
Despite this, software companies keep including shrink-wrap licenses in their software packages. Also, the Swedish license text is usually directly translated from the US-american version of the, despite many of the terms being meaningless under Swedish law.
In the U.S., I understand that the law isn't as clear, as there seems to be a debate over the validity of shrink-wrap licenses.
I just got done with a software licenses class at my law school (wrote my paper on open source licenses, actually), and while I may not like the terms of these clickware license agreements, in my opinion they are valid and we should follow them or stop buying the software / return it and let the companies we don't like how they do business. Are you serious? If you've been studying law, surely you must know that laws trump contracts. You can't make a law invalid by signing a contract that contradicts it. If a law doesn't explicitly say that you can negotiate away the rights the law gives you (in this case the right to re-sale purchased goods), then you can't. The contract is invalid.
The only academic research I know of that has been done into this came to the conclusion that patents made little difference to semiconductor R & D: the main incentive was to get products out before the competition.
That sounds interesting; do you have a handy link or other reference?
Here in Sweden, retailers are required by law to replace a defect consumer product within three years, if the consumer can prove the fault is original (like a manufacturing defect). This is called "reclamation".
This is NOT the same as "warranty". "Warranty" means the burden of proof is on the retailer, i.e. the retailer has to repair or replace the product if they can't prove the fault originated after the purchase. According to Swedish law, the retailer has to give at least six months warranty, but many give more.
People are often confused by this, and believe they have no rights left after the warranty expires. (Or that they have no rights beyond what the manufacturer's warranty statement claims.)
I don't know if "warranty" has the same meaning in the U.K., but Tikka's laptop is only 5 months old, and it sounds like she can prove there is a manufacturing or design flaw that causes the casing to crack, so it's not impossible she has a legal right to get a repair or replacement, regardless of what the warranty statement says. She might even convince HP's legal department of her rights, without having to go to court.
But a marketeer or lawyer would also say that what Mike is doing is perfectly normal
Seems I was wrong here; a lawyer would say that Mike is illegaly interfering with the contract between the retailer and the producer, according to hawk.
In my country, the situation would be reversed (the price fixing would be illegal, and even if the contract was valid, only the persons agreeing to it would be held responsible for it's breach).
The 3d party was aware of the contract, and the law has long recognized a tort for interference with contract
Thanks, I had no idea the US legal system worked that way. I don't think we have anything similar in my country. But we also don't allow producers of goods to fix prices, so maybe there is less need for it.
Do you by any chance know if this is an actual law in the US, or something that courts just have to assume?
By the way, I read the complaint from MNC, and they didn't seem to have any proof that LaBarbera was aware of the retailer contract, or even that she was buying directly from a retailer. It seemed to be merely a loose claim.
I agree that we shouldn't be too quick to blame everything on the big corporations. But in this case, I'm not sure anything needs to be done at all.
The cosmetics producer, MNC, wants their products only available at beauty salons to make it feel more exclusive and increase the perceived value of it. That way, they can get people to pay a premium. If the cream is sold cheaply on eBay, and the perceived value of it goes down, it just means MNC chose an unrealistic business model. They'll have to find another way to make money or go bust. Either way, it's not the end of the world.
Does the producer have a right to control over his products up until they reach the consumer? I don't think so. The producer may be able to seize that "right" for themselves by making all the retailers sign contracts, but it's not a foolproof method, and the producer can't expect it to work all of the time.
Is the retailer in the wrong for breaking their contract with the producer? Yes, I think so. The retailer hasn't respected the rules of the game. I presume there are other producers to choose from if MNC's terms are unerasonable. I think it's perfectly reasonable for the producer to sue the retailer.
Is Mike in the wrong for buying stuff cheaply from the retailer and reselling it on eBay? You could argue that he's acting unethically, because he's actively participating in the retailers breach of contract. And I think that argument has some merit. But making it illegal is going too far.
Is MNC's business model unethical? Yes, I think so. The producer is inflating the perceived value of their product by making it seem more exclusive, taking advantage of people's ignorance. They are forcing consumers into a package deal (buying their skin treatments and cosmetics at the same place), thereby limiting price competition and their consumers freedom of choice.
A lawyer or marketeer would say that the perceived value IS the real value, and that what MNC is doing are perfectly normal business practices. But a marketeer or lawyer would also say that what Mike is doing is perfectly normal: He's taking advantage of the inefficiences of the economy that MNC introduces by insisting on a higher than market price, and he's providing a valuable service to his customers by selling at a lower price. Lawyers and marketeers are not known for their expertise on ethics.
Let me guess: the interest rates are very low in the UK right now?
Here in Sweden, real estate prices are also ridiculously inflated. This is very clearly linked to the low interest rates. People bid more on houses than they should be worth, just because they can borrow large amounts of money very cheaply from the banks.
If the economy changes and interest rates go up, a lot of people will find they can no longer afford the payments. And as the interest rates go up, house prices will go down, so they will be forced to sell their houses at a huge loss.
It's not the first time this happens, and it will not be the last.
In this case, what you "bought" at the first sale was something you knew the seller didn't have the right to sell . ..
Yes, and what strikes me as odd is why this would matter. Knowing that X does something wrong by selling a product to you, doesn't automatically mean YOU are doing something wrong.
Is there actually a law in the US saying it is illegal to aid someone in breaching a contract only THEY are bound by?
They can place the serial number on the packaging in such a way that it cannot be removed without making the product look damaged. A lot of customers would complain and refuse to buy products with packaging that appeared damaged.
Fire and brimstone coming down from the skies. Rivers and seas boiling.
Forty years of darkness. Earthquakes, volcanoes...
The dead rising from the grave.
Human sacrifice, dogs and cats living together - mass hysteria.
Merle Norman Cosmetics (MNC) is not suing the cosmetics retailer they had a contract with. They are suing a third party, LaBarbera, who allegedly bought cosmetics from the retailer and resold it on eBay. LaBarbera has never had any contract with MNC.
The lawsuit is not about "manufacturers requiring their vendors to comply with their sales contracts", as you claim. It's about manufacturers requiring *third parties* to comply with their vendors sales contracts. Third parties who have never entered into any agreement with the producers whatsoever.
Merle Norman Cosmetics is claiming that LaBarbera is guilty of "tortious interference with [the retailers] performance of her Studio Agreement" by buying cosmetics from the retailer.
To me, it sounds absurd that it could be illegal to *cause* someone to breach a contract. That effectively means contracts between two parties are enforcable on a third.
I've read the complaint that Merle Norman Cosmetics has filed.
They claim that an unknown cosmetics dealer, 'Jane Doe', has breached her contract by selling cosmetics to LaBarbera, and that LaBarberas act of buying the cosmetics constitutes "tortious interference of Doe's performance of her studio agreement with MNC".
Can someone explain the legal rationale for this? Is it actually illegal in the US to aid someone in breaching a contract?
Perhaps, but plese elaborate.
For instance, let's say John Smith in timeline A travels back in time to warn himself of an accident. He succeeds, and the timeline changes to B, where the accident doesn't occur. Then the timeline B version of Smith doesn't see a need to invent a time machine, and never travels back in time to warn himself.
How would the need return?
Would timeline B automatically revert back to A, witout a time trip to trigger it?
No, a changing timeline cannot enter a cyclic state where time travel is alternatively discovered and not discovered. As soon as the timeline enters the state where time travel is not discovered, it will stop changing.
A changing timeline can, however, go into a stable cycle if each travel back in time changes the timeline to one of its previous states.
A special case of this is the static timeline, that is, a timeline where every travel back in time ends up recreating the timeline exactly like it was when the time traveller departed.
Only if you assume a model of time where each travel back in time changes the timeline retroactively.
There are other models, for instance, the one where the timeline is static, and someone who travels backwards in time will always end up recreating events "like they always happened".
There is also a model where each travel back in time splits off a new parallell universe, identical to the previous one up until the point where the timetraveller/message from the future appears.
Typically, countries will assert jurisdiction over acts committed within their geographic territory or acts committed by their own citizens wherever they may be.
And the problem is that any country can make that claim. If a German citizen robs a US citizen in Australia, each of these three countries can try to assert jurisdiction.
Typically, USA will ignore other countries claims, and do what they see fit. If the alleged criminal happens to be on US ground, they will typically keep him there, ignoring other countries demands. If the alleged criminal is on foreign ground, they will typically demand him/her extradited, and apply pressure to get what they want.
USA is the most powerful nation in the world, financially and military, so it doesn't have to care about what other nations think.
This case does not appear to be based on any of those theories of jurisdiction. According to the article, the US charged Mr. Griffiths with conspiracy. Under conspiracy, any one conspirator is liable for the acts of any other person in the conspiracy.
Thank god that is not the case in Sweden. We don't have collective guilt; in the case of a conspiracy, each person's guilt has to be proven separately, and each person is convicted for only the part of the crime they participated or aided in.
You can, however, be convicted for accessory just by being present when the crime was committed and the circumstances show that you approved of it (for instance, if you follow someone into a house, knowing that he's intending to murder someone there).
Not that our system is perfect - it's considered very hard to get someone convicted in a court of law, even when the person is likely guilty.
This is very troublesome when applied to such a mundane crime as copying works and giving them to people who never would have bought them in the first place. The actual effect of the conspiracy is arguably insignificant. It doesn't seem as troublesome when applied to something who planned the 9/11 attacks, where the effect is very significant. But the theory of jurisdiction is the same: conspiracy with people who committed criminal acts inside the prosecuting country.
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One of the misunderstandings of 'fair use' is that it creates an affirmative right to do the thing in question. It does not. 'Fair use' is an affirmative defense to copyright infringement, it means that if someone sues you for violating their copyright, you can counter by saying "what I did is fair use" -- it functions as an exception to the criminal/civil statute.
Aha, that's different from how it works here in Sweden. Our copyright law simply states that it applies to a number of areas, with a number of exceptions, and anything covered by the exceptions, like making copies for personal use, is simply not illegal. I'm not sure how it works in other European countries.
There's still no obligation on the part of the copyright holders to make it possible for the consumer to exercise those rights, though. They are free to implement whatever copy protection they want. We have even been forced (by the European Union) to implement a law against circumvention similar to the provisions in the DMCA. Fortunately, it looks like it's still legal to circumvent protection that prevents the consumer from enjoying their music or movie on the player of their choice (like a standard MP3 player or a computer with Linux).
Speaking of which, are there "WYSIWYG" languages, where there's a clear one-to-one match between written and spoken words?
There certainly are. It's sometimes called "phonetic spelling". Finnish is one of the languages which has it, and It even goes as far as using double letters for long sounds and single letters for short sounds. (A long 'a' sound is spelled 'aa', for example.) Finns also make sure to adapt all loanwords to their own spelling rules.
English has unusually complicated spelling, due to loaning a very large number of words from French, Latin and other languages without standardizing their spellings.
German doesn't have a one-to-one correspondence between letters and sounds, but the same sounds are always spelled the same way. For example, the "eu" combination in German words like "Deutsch" is always pronounced like the "oi" in the English word "coin", and vice versa.
Bah, that's nothing!
I overheard a conversation Linus had at the campus cafeteria back in 1990, when the Linux kernel was just an idea in his head. During the conversation, I wrote down the machine code on a napkin and executed it by hand, using a couple of salt shakers to keep track of the status registers.
You youngsters think you need a lot of expensive hardware to run software, but let me tell you, back in those days, we learnt to use our heads!
I think you're missing the point... the court ruled that it was libel regardless of whether the guy was actually guilty of stealing. That will set a precedent for treating some true statements as slander, even if it later turns out that this particular guy was innocent.
In my country, Sweden, the law is very clear about this (at least for consumers): The terms of the sale are the terms agreed upon when the sale is complete, and the sale is considered complete at the latest when the customer has paid for and received the goods.
It's not possible for the seller to impose additional terms on the consumer after the sale is complete. Since shrink-wrap licenses are not presented to the consumer until after the sale, they are not part of the sales agreement, and are no more than fancy toilet paper.
Also, the consumer only has an agreement with the reseller, not with the software supplier, unless something else was explicitly agreed upon before the sale was complete. It is not necessary for the consumer to enter into an agreement with the software supplier in order to use the software, since Swedish copyright law explicitly allows one to make temporary copies of the sotware in the computer's memory when necessary for its use.
Despite this, software companies keep including shrink-wrap licenses in their software packages. Also, the Swedish license text is usually directly translated from the US-american version of the, despite many of the terms being meaningless under Swedish law.
In the U.S., I understand that the law isn't as clear, as there seems to be a debate over the validity of shrink-wrap licenses.
That sounds interesting; do you have a handy link or other reference?
Here in Sweden, retailers are required by law to replace a defect consumer product within three years, if the consumer can prove the fault is original (like a manufacturing defect). This is called "reclamation".
This is NOT the same as "warranty". "Warranty" means the burden of proof is on the retailer, i.e. the retailer has to repair or replace the product if they can't prove the fault originated after the purchase. According to Swedish law, the retailer has to give at least six months warranty, but many give more.
People are often confused by this, and believe they have no rights left after the warranty expires. (Or that they have no rights beyond what the manufacturer's warranty statement claims.)
I don't know if "warranty" has the same meaning in the U.K., but Tikka's laptop is only 5 months old, and it sounds like she can prove there is a manufacturing or design flaw that causes the casing to crack, so it's not impossible she has a legal right to get a repair or replacement, regardless of what the warranty statement says. She might even convince HP's legal department of her rights, without having to go to court.
In Russia, the STATE owns all assumptions.
But... but... it's so much fun giving Microsoft a pinch! :-p
Seems I was wrong here; a lawyer would say that Mike is illegaly interfering with the contract between the retailer and the producer, according to hawk.
In my country, the situation would be reversed (the price fixing would be illegal, and even if the contract was valid, only the persons agreeing to it would be held responsible for it's breach).
Thanks, I had no idea the US legal system worked that way. I don't think we have anything similar in my country. But we also don't allow producers of goods to fix prices, so maybe there is less need for it.
Do you by any chance know if this is an actual law in the US, or something that courts just have to assume?
By the way, I read the complaint from MNC, and they didn't seem to have any proof that LaBarbera was aware of the retailer contract, or even that she was buying directly from a retailer. It seemed to be merely a loose claim.
I agree that we shouldn't be too quick to blame everything on the big corporations. But in this case, I'm not sure anything needs to be done at all.
The cosmetics producer, MNC, wants their products only available at beauty salons to make it feel more exclusive and increase the perceived value of it. That way, they can get people to pay a premium. If the cream is sold cheaply on eBay, and the perceived value of it goes down, it just means MNC chose an unrealistic business model. They'll have to find another way to make money or go bust. Either way, it's not the end of the world.
Does the producer have a right to control over his products up until they reach the consumer? I don't think so. The producer may be able to seize that "right" for themselves by making all the retailers sign contracts, but it's not a foolproof method, and the producer can't expect it to work all of the time.
Is the retailer in the wrong for breaking their contract with the producer? Yes, I think so. The retailer hasn't respected the rules of the game. I presume there are other producers to choose from if MNC's terms are unerasonable. I think it's perfectly reasonable for the producer to sue the retailer.
Is Mike in the wrong for buying stuff cheaply from the retailer and reselling it on eBay?
You could argue that he's acting unethically, because he's actively participating in the retailers breach of contract. And I think that argument has some merit. But making it illegal is going too far.
Is MNC's business model unethical? Yes, I think so. The producer is inflating the perceived value of their product by making it seem more exclusive, taking advantage of people's ignorance. They are forcing consumers into a package deal (buying their skin treatments and cosmetics at the same place), thereby limiting price competition and their consumers freedom of choice.
A lawyer or marketeer would say that the perceived value IS the real value, and that what MNC is doing are perfectly normal business practices.
But a marketeer or lawyer would also say that what Mike is doing is perfectly normal: He's taking advantage of the inefficiences of the economy that MNC introduces by insisting on a higher than market price, and he's providing a valuable service to his customers by selling at a lower price. Lawyers and marketeers are not known for their expertise on ethics.
Let me guess: the interest rates are very low in the UK right now?
Here in Sweden, real estate prices are also ridiculously inflated. This is very clearly linked to the low interest rates. People bid more on houses than they should be worth, just because they can borrow large amounts of money very cheaply from the banks.
If the economy changes and interest rates go up, a lot of people will find they can no longer afford the payments. And as the interest rates go up, house prices will go down, so they will be forced to sell their houses at a huge loss.
It's not the first time this happens, and it will not be the last.
Yes, and what strikes me as odd is why this would matter. Knowing that X does something wrong by selling a product to you, doesn't automatically mean YOU are doing something wrong.
Is there actually a law in the US saying it is illegal to aid someone in breaching a contract only THEY are bound by?
And this puts the finger on what I consider to be the most remarkable part of the case.
Is it actually illegal in the US to aid someone in a breach of contract?
Is this some kind of federal law?
They can place the serial number on the packaging in such a way that it cannot be removed without making the product look damaged. A lot of customers would complain and refuse to buy products with packaging that appeared damaged.
Yes, but you, as the salon owner, can't sell the cosmetics to your buddy Mike without getting sued.
MNC are essentially claiming they should be able to sue BOTH you and your friend Mike, even though only you were bound by the contract.
Gay marriage too?
hawk, I think you may have misread the article.
Merle Norman Cosmetics (MNC) is not suing the cosmetics retailer they had a contract with. They are suing a third party, LaBarbera, who allegedly bought cosmetics from the retailer and resold it on eBay. LaBarbera has never had any contract with MNC.
The lawsuit is not about "manufacturers requiring their vendors to comply with their sales contracts", as you claim. It's about manufacturers requiring *third parties* to comply with their vendors sales contracts. Third parties who have never entered into any agreement with the producers whatsoever.
Merle Norman Cosmetics is claiming that LaBarbera is guilty of "tortious interference with [the retailers] performance of her Studio Agreement" by buying cosmetics from the retailer.
To me, it sounds absurd that it could be illegal to *cause* someone to breach a contract. That effectively means contracts between two parties are enforcable on a third.
I've read the complaint that Merle Norman Cosmetics has filed.
They claim that an unknown cosmetics dealer, 'Jane Doe', has breached her contract by selling cosmetics to LaBarbera, and that LaBarberas act of buying the cosmetics constitutes "tortious interference of Doe's performance of her studio agreement with MNC".
Can someone explain the legal rationale for this? Is it actually illegal in the US to aid someone in breaching a contract?
Perhaps, but plese elaborate. For instance, let's say John Smith in timeline A travels back in time to warn himself of an accident. He succeeds, and the timeline changes to B, where the accident doesn't occur. Then the timeline B version of Smith doesn't see a need to invent a time machine, and never travels back in time to warn himself. How would the need return? Would timeline B automatically revert back to A, witout a time trip to trigger it?
No, a changing timeline cannot enter a cyclic state where time travel is alternatively discovered and not discovered. As soon as the timeline enters the state where time travel is not discovered, it will stop changing. A changing timeline can, however, go into a stable cycle if each travel back in time changes the timeline to one of its previous states. A special case of this is the static timeline, that is, a timeline where every travel back in time ends up recreating the timeline exactly like it was when the time traveller departed.
Only if you assume a model of time where each travel back in time changes the timeline retroactively. There are other models, for instance, the one where the timeline is static, and someone who travels backwards in time will always end up recreating events "like they always happened". There is also a model where each travel back in time splits off a new parallell universe, identical to the previous one up until the point where the timetraveller/message from the future appears.
And the problem is that any country can make that claim. If a German citizen robs a US citizen in Australia, each of these three countries can try to assert jurisdiction.
This case does not appear to be based on any of those theories of jurisdiction. According to the article, the US charged Mr. Griffiths with conspiracy. Under conspiracy, any one conspirator is liable for the acts of any other person in the conspiracy.Typically, USA will ignore other countries claims, and do what they see fit. If the alleged criminal happens to be on US ground, they will typically keep him there, ignoring other countries demands. If the alleged criminal is on foreign ground, they will typically demand him/her extradited, and apply pressure to get what they want.
USA is the most powerful nation in the world, financially and military, so it doesn't have to care about what other nations think.
Thank god that is not the case in Sweden. We don't have collective guilt; in the case of a conspiracy, each person's guilt has to be proven separately, and each person is convicted for only the part of the crime they participated or aided in.
You can, however, be convicted for accessory just by being present when the crime was committed and the circumstances show that you approved of it (for instance, if you follow someone into a house, knowing that he's intending to murder someone there).
Not that our system is perfect - it's considered very hard to get someone convicted in a court of law, even when the person is likely guilty.
This is very troublesome when applied to such a mundane crime as copying works and giving them to people who never would have bought them in the first place. The actual effect of the conspiracy is arguably insignificant. It doesn't seem as troublesome when applied to something who planned the 9/11 attacks, where the effect is very significant. But the theory of jurisdiction is the same: conspiracy with people who committed criminal acts inside the prosecuting country.And that is why laws can, and should, be changed.