Surveys of undergraduates at several public and private universities reveal the number of students who admit [emphasis my own] to using illegally copied "free" software remains high but dropped noticeably between 1996-97 and the 2000-01 school year.
Maybe people aren't admitting it because they're afraid that someone might actually start enforcing legislation like the NETA (No Electronic Theft Act) and DMCA against average users. Look at Sklyarov.
I'd like to think people are starting to buy stuff... but come on - do we really think the piracy norm has gone anywhere?
Once again, the content industry is trying to pass off the costs of securing content. As I said the other day, in relation to Jack Valenti's most recent act of public self-humiliation (er... I guess that's what they call PR)
"The content industry has been trying to force the costs of secure IP on everyone BUT themselves. First users, then ISPs, now electronics manufacturers. When the hell will they figure out that securing their content is their own damn problem? It's like they can't figure out how to lock their own door, and instead of building a better lock, they'd rather criminalize the act of using a doorknob - er, excuse me, "wall-circumvention device." Obviously, that was a subversive Freudian slip.
Okay, so maybe recycling comments is bad form, but its even more prescient now than before.
That being said, feel free to call me hopelessly optimistic here... but I sense the tide turning.
Okay, I can hear the collective huh? out there, but I'm saying this seriously. I think there's two indicators that may mean the tide is turning away from the property rights hawks and toward the rest of us.
First, the Senate has gotten into the game. Sen. Boucher has given the RIAA flack recently about copy protection schemes and digital watermarking, and Sen. Hatch has voiced on at least one occasion that the DMCA may not be working. ("Hey, no kidding, Orrin!?")
Second, the Supreme Court has gotten into the game. Last year's Tasini decision (look it up on Findlaw) was the first subtle blow to content owners, and I think the Eldred appeal, if the Court strikes down the Mickey Mouse Protection Act, may be the next.
To paraphrase Churchill, I'm not saying this is the end. It's not even the beginning of the end. It may, however, be the end of the beginning.
Excuse my proselytizing, but where that ends is up to you. Email your Congressperson about the SSSCA. I don't care - tell them you think Hollings is a weenie. Just make yourself heard. If you've got time to peruse Slashdot, you've got time to write the damn email. And that doesn't even have to be in HMTL.
Hey - I think paying Mariah Carey $28 million not to sing is a good deal. 'Cause, damn, I didn't think we'd ever get her to shut up. Maybe Britney Spears will make us an offer too?
it's pathetic but anybody who disagrees with anything you say just has to contact who is hosting/providing/carrying your traffic with a big scary legal letter and voila... you're shutup without so much as a word in sidewise
As I always say when I write these kind of posts, IANAL. That being said -don't take this personally, but this is just plain wrong. One of the anomolies of the Communications Decency Act was that it contained this little-known provision (47 U.S.C. 230) that ISPs could not be held liable as publishers of content that was in any way injurious. This provision was one of the few significant sections of the Act that survived the Supreme Court's invalidation of the CDA in ACLU v. Reno .
This provision did not affect IP law (i.e., the DMCA still applies) but it means that the sort of C&D letters you're talking about rarely have any effect. ISPs whose legal counsel have any wherewithal ignore them, assuming anyone ever even bothers to write them. While minor hosts who may not have a lawyer could fall for such C&D letters, this behavior may constitute abuse of process or any number of various "business" torts under unfair competition law.
In fact, even when information posted is blatantly defamatory, the ISPs themselves are protected - in order to promote "robust" expression on line. (The poster, if s/he can be found, remains liable.)
C&D letters are far more effective when IP issues, circumvention devices, etc., are involved. Hence, if I did in fact "contact the site admin for Slashdot.org" in order to "shut you up", they would likely (and fortunately) kindly tell me to blow it out my ear. And hallelujah for that.
Just a few notes, with the usual disclaimer - I'm not a lawyer. So take this for what you will.
Legally, pornography is 'free speech,' that is, it is protected by the First Amendment, until it reaches the level of the obscene. When's that, you ask?
Beats the hell out of me. This is the source of the famous quote on obscenity, "I know it when I see it." But that's that - something that is simply lewd is protected by the First Amendment; something that is obscene is not.
As for fair use, it cannot so easily be divorced from the idea of free expression. Several legal scholars, including Lawrence Lessig, Yochai Benkler, and Nimmer - a famous authority on Copyright - have argued that the IP clause of the U.S. Constitution is limited by the First Amendment.
That's to say that Congress's granting of "exclusive rights" for the advancement of progress in "Science and the Useful Arts" is limited by the often opaque First Amendment analyses for which the Supreme Court is famous - there's a balancing test between the government's interest in propounding the regulations or legislation in question and the public interest in free expression.
This is what is afoot in the Eldred v. Ashcroft case that the Supreme Court recently agreed to hear (on the Mickey Mouse Protection Act). While it will be some time before arguments are made, you can be sure this issue will come up, and you can be damn sure that someone (probably a dissenter) will be making the arguments that the public interest in free expression constitutes a boundary limiting Congress's power to grant exclusive rights.
Anyway... that's my inflation-adjusted $.02, take it for what you will.
Let me weigh in on Economics 101. This fictitious argument that a "dozen competitors in the same small geographical area" will all "sell at a loss and die" may be the case.
You know what I say? Great! That may be, and then went the industry converges on a few major DSL players, we'll know that natural oligopoly is the status quo for the DSL industry. And every time someone pulls out the antitrust argument, you can say 'we tried that'.
Or you can simply declare that competition won't work, and dictate that the network owners get to do whatever they damn please. Oh, and because they're earning super-competitive profits, they'll branch out to provide DSL to rural communities where its not profitable to do so.
Long pause. [Insert "huh?" here.] Not profitable?!? If any mechanism is going to get rural broadband off the drawing board, it will be market pressure, not a oligopoly of telecom companies earning supercompetitive profits on what amounts to a state-granted monopoly.
The economies-of-scale argument is irrelevant. Because the network already exists, the CLECs plugged into the Bell networks have already made the scale investments. It's there to be taken by anyone, given that they have open access to the essential facilities.
The real question is whether you want to allow the Bells to have to fight off competition with superior service, or whether you want to assume that competition will ultimate tank, and just do away with that whole "free market" thing. Because we all know that's a crock, right?
Indie DSL providers may all go belly up, but we owe it to ourselves to figure out whether that's going to happen. Tauzin-Dingell is corporate rent-seeking, plain and simple.
Judge Patel, a jurist who has most decidedly taken the side of the plaintiffs in the Napster case, wants to make her decision airtight. There's no way that Napster will be able to appeal the decision to the Supreme Court if she allows the defendants to explore every possible line of defense before they lose the case.
I will join the long line of scholars, lawyers, and laymen who rightfully criticized the Napster opinions, not for their politics, but for their inartful application of an incompetently-drafted law. Judge Patel's previous opinions have been nothing for her (or, more likely, her law clerks) to be proud of.
That being said, hearing such conspiracy-theories that a life-appointed judge is somehow "in the pocket" as opposed to just plain incompetent advanced by some, including those who claim to be law students, is nothing short of irresponsible.
Not to mention incorrect. As some, including Mr. Fair Use Guy, have wrongly suggested, Patel seeks to insulate her opinions from Supreme Court appeal.
One who claims to be a law student should know that Patel's decisions are appealed first to the Ninth Circuit, and then to the Supreme Court. And while the three-ring-circus-like Ninth Circuit is wholly unpredictable, capable of disputing ruling such as whether the sky is blue, the Supreme Court would not touch the over-litigated quagmire that is Napster with a ten-foot whatever - it not federalism, there's no circuit split, and there's not a damn interesting issue to be found in ten billion pages of pleadings.
It will be a cold day in hell before the Supreme Court agrees to hear any of the Napster decisions. Jerry Falwell will smoke crack before the Court hears Napster. John Katz will write a useful article before the Court hears Napster. Microsoft will release WinXP on a GPL, disco will return, and someone will actually mod up one of my postings before the Supreme Court hears Napster.
The Ninth Circuit is the end of line - and Patel can't do a damn thing to stop the Ninth Circuit from reviewing her - as they've proven themselves willing to review damn near everything. So ditch the conspiracy-theory crap, and recognize bad law when you see it.
I commend unto you Hanlon's Razor: "Never attribute to malice that which can be adequately explained by stupidity."
does this apply to www.companynamesucks.com? Will they start allowing these again?
Man... where has everyone been? "They" never stopped allowing [Insert Your Name Here]sucks.com. Let me say first, IANAL. That being said, there are two mechanisms preventing cybersquating -
1) ICANN's UDRP (Uniform Domain Name Dispute Resolution policy), which virtually everyone agrees to when registering a domain name (depending on whether its a ccTLD or gTLD) and
2) the ACPA (Anti-cybersquatting Consumer Protection Act), which is a U.S. law.
I've done a little research on these mechanisms, and most of the Slashdot/Wired/ZDNet coverage has been hopelessly biased against corporations. And I'm saying this objectively.
The deal on these is that there are three general criteria that drive both: 1) the domain name of the site, 2) the content of the site, and and 3) your conduct in registering the domain and dealing with whomever you're criticizing.
If you're domain name is sufficiently different (you can't criticize companyX at companyX.com), you site is actually anti-company X, rather than being some lame-ass porn portal, or worse, you don't use the domain at all, and you don't f*ck around with your WHOIS info - that is, you put in your real information, and don't pull any of the extortion act, chances are, no one is going to yank your domain.
The problem is that most of the guys losing their domain names are guys like Zuccarini (look him up, the FTC's been after him) are just hiding behind free speech arguments instead of actually owning up to the fact that trying to extort cash out of the corporate monoliths they attack. And in the meantime, they're screwing up the First Amendment law for the rest of us by goading Congress into legislation like the ACPA. For a fine example to us all, check out sucks500.com.
If you're down on the fact that cybergriping is getting squeezed out, mercenary cybersquatters are just as much to blame as "They" are.
Oh, and by the way, this case was about a zoning ordinance. Doesn't anyone read these things before they get posted?
"...and the Mute, he played us a righteous dub..."
"Duh," I think, is a rather appropriate response here. Everyone goes on & on, wah wah, about 'reasonable expectation of privacy.' Bah! That applies to third parties. You never have a reasonable expectation of privacy concerning the guy (or girl, as in this case) on the other end of the line disclosing the content of the conversation to another person. If you're a bad judge of whom to can trust, that's your problem. The Fourth Amendment protects you from law enforcement, not your own stupidity.
So who the heck thinks that its any different for IM or email? This guy hasn't a snowball's chance in hell.
Let me start by saying IANAL - so this isn't advice. If you're looking for pro bono help, contact the EFF or someone.
That being said, it looks like its yet another example of the ol' "substantial non-infringing use" argument. This is the same logic that Sony floated to get the VCR past Hollywood's objections back in the day. For anyone interested in poking around on FindLaw.com, that's Sony Corp. of America v. Universal Studios, Inc., 464 U.S. 417 (1984). See also Vault Corp. v. Quaid Software, Ltd., 847 F.2d 255 (5th Cir. 1988).
The basic idea is that the VCR was a 'staple article of commerce' - it was widely used for legitimate, unobjectionable purposes, such that this value outweighed any infringing conduct that it might facilitate. I'd like to hear what any other law-oriented folks out there think.
Can the Flash Advance Linker be construed as a staple article of commerce? Isn't this the same argument that Diamond made to avoid an injunction on the Rio?
On the one hand, the back-up capacity of a product always lends creedence to the substantial non-infringing use argument. And suppressing the device to prevent public-domain games from entering the market might even be construed as misuse of copyright (reference Napster's counterattack on A&M... but I digress...)
On the other hand, notice of alleged infringement goed toward undermining the 'staple article of commerce' argument. The Ninth Circuit's Napster opinion suggested that the 'staple article of commerce' argument only went toward the knowledge element of contributory infringement, and thus didn't matter, because the evidence demonstrated that Napster clearly had knowledge of the infringing conduct.
Come to think of it, I don't know of any distributors ever making this argument. Particularly when no one has raised any arguments about contributory infringment.
It's thinking like that that promotes the Mickey Mouse Fan Club. And I don't mean the Mouseketeers.
It's great that you want to leave something to your children. But a revenue stream in the form of an interminable copyright is not the way it's supposed to be done.
When the Founders drafted the IP clause of the Constitution, they inserted the phrase "limited times" to prevent that from happening.
And honestly, I don't think the fact that you can leave your work's future revenue stream (assuming its a King-esque blockbuster) to your kids is going to give you enough marginal incentive to publish the next "Gone With the Wind" whereas before, "eh... its just too much trouble."
Discount that revenue stream to present value, my friend, accounting for inflation and transaction costs, and you will find that for the cost of a Big Mac invested in a trust fund today, you can leave just as much to your kids as if your Magnum Opus were protected indefinitely.
Many scholars in the legal community have taken to referring to the Sonny Bono Act as the Mickey Mouse Protection Act, reflecting the fact that every time major corporate interests in IP (such as Disney's in its early content) threaten to fall into the public domain, these interests run to Congress for another extension.
Of course, this wasn't really about bringing us in line with EU directives; it was just a convenient cover to save Mickey's ass. Hence, you can bet your bottom dollar that in twenty years, when the most recent extension runs out, the IP lobbyists will once again descend on Capital Hill.
What this case is all about is whether this is unconstitutional. Activists like Prof. Lessig and others have argued that the Copyright Clause of the Constitution is limited by the First Amendment. Because IP rights have to be granted in the name of "advancing progress", there's a real question about whether or not giving Disney another two decades of revenues advances anyone's interests but their own.
Also, because the Constitution only grants authors rights for "limited times", granting an unlimited number of extensions, (20 years, every 20 years) constitutes a grant of an unlimited right.
And I don't think anyone needs to be a lawyer to figure that one out.
Here's a thought. Academic journals cost a fortune because they've got 100 times the content of Newsweek and 1/100th of the subscribership base. The subscriber-to-verifier ratios too damn low to keep them reasonably priced. They're not overpriced because there's some Hearst somewhere riding high on the hog off subscriptions to the Okipenoki Journal of Internal Medicine - its just supply and demand.
If you introduce a successful, free journal, you'll only further undermine that market. Now I don't know about you, but I'd rather see the error costs manifesting themselves as a few bright folks not getting published rather than a couple dozen fruitcakes pushing theories about how the government is leasing Area 51 to Martians.
It sounds like Soros would substitute peer review (not much sh*t, but good sh*t) with Peer-2-Peer review (not good sh*t, but alotta sh*t). I'm not sure this is the trade-off we want to make.
The journal system may suck - but maybe that means we should be further subsidizing the market, rather than trying to explode it.
This is one more illustration of why the DMCA reads as veritable "What Not to Do" Guide for statutory drafting...
To summarize the language of the DMCA - "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any [circumvention] technology, product, service, device, component, or part thereof..." 17 U.S.C. 1201(a)(2).
If the cable that Colin tried to import is prohibited under the DMCA, then Marcus Comstedt's Programming site, whose URL was posted previously, still consists of "offering to the public" the "technology." Therefore, to the extent the import is prohibited, so is disclosing how to improvise one.
And fair use? Yeah - nevermind that. Doesn't apply to circumvention technologies. Hell, even Slashdot may be on the hook for hosting this discussion because the safe harbors for ISPs don't apply in Sec. 1201.
Recall what happened when 2600 was enjoined from posting DeCSS. Following the issuance of the injunction, in true keeping with 2600 style, the site just linked to sites where you could get DeCSS. The court wasn't amused, and that was enjoined too. And while no one is foolish enough to pursue claims on these grounds (as much as the EFF might appreciate it) the mere fact that the DMCA permits such actions exemplifies why its passage was an unmitigated catastrophe.
The suggestion that 802.11b security issues may not pose a problem reflects a cavalier take on a nuanced problem.
While the benefits to data mapping wireless far outweigh the risks to facilitating users of Snort/Crack (noun, not command) apps, this doesn't mean we should forget about security. The aforementioned "crackers and script kiddiez" impose costs on the system that must be noted. It's far wiser to look down the road than to burn the bridge when we get there.
And don't think commercial ISPs wouldn't love to see Wi-Fi whacked in its infancy. There's interests lining up behind strangling the babe in its crib.
The QoS may be there - while I was under the impression that current traffic maxxed out the DSL pipe, I'll just assume I'm mistaken - but that still doesn't explain how Vista is going to protect their own wireless traffic nodes (forget the end-user) from mobile attacks.
Wouldn't they have to deploy high-end security for each router that gets an antenna to prevent every deadbeat with an 802.11b device and some sniffing technology from surfing for free?
TO: Corporate-control conspiracy theorists
From: Asst. to the Voice of Reason
Re: Demand for Linux Support
It seems to me that two strings of this conversation dovetail into the same insight, which seems to cut against the Linux doom-sayers. Those arguments are: 1) that Uncle Sam is too incompetent or salary-disadvantaged to hire good OSS support, and 2) that the Gov't is completely controlled by corporate interests...
Let's just assume for pedagogical purposes that these assertions are valid.
Both naturally suggest that if The Hill were to send out a broad mandate for inter-agency OSS adoption, that this would serve the republican (small r) process. And why the hell is that? Well, think about the following:
1) it would turn Uncle Sam's rhetorical support for non-proprietary standards into real action, so even if you're a raving federalist, OSS companies are your boys because their influence will ulimately downsize the gov't labor force, leaving more to the private sector, and popularize the market for IT support; and
2) Becuase your assuming the technocrats are too dense to hire good IT, they'll be forced to contract out the wazoo for their support. Why? Because its easier to seek funding for technical support in your Appropriations requests that it is to seek personnel increases- that's obvious, right? You're not going to Congress and saying "my agency needs more people," you're saying "my agency needs technical remedies to enforce YOUR mandates."
So even if you've got a cynical outlook on the republican (small r) process, there's concentrated corporate interests that will line up behind OSS, thereby ultimately loosening the grip of proprietary standard-mongers.
The skepticism with which some of the early posts view this possibility is disheartening. Some may forget that the U.S. Government spent a fortune in the 1980s buying computer equipment from Wang in a desperate and untimately unsuccessful attempt to prop up that failing company. When Wang (inevitably) imploded in bankruptcy, Uncle Sam was left holding the bag with a lot of equipment and no support.
The point? It didn't make much sense to buy Wang, and "credible" reports may argue against adopting Linux, but if powerful agents on The Hill are backing a project, deals go through in spite of conventional wisdom.
To the extent that Weathersby's Machiavellian approach to Hill politics fosters the adoption of open source, his efforts are to be commended - and supported - such that for once, the log may roll in favor of diffuse interests.
Winter
Slashdot Mirror
Um. Yeah. The quote, for everyone's edification:
Surveys of undergraduates at several public and private universities reveal the number of students who admit [emphasis my own] to using illegally copied "free" software remains high but dropped noticeably between 1996-97 and the 2000-01 school year.
Maybe people aren't admitting it because they're afraid that someone might actually start enforcing legislation like the NETA (No Electronic Theft Act) and DMCA against average users. Look at Sklyarov.
I'd like to think people are starting to buy stuff... but come on - do we really think the piracy norm has gone anywhere?
Once again, the content industry is trying to pass off the costs of securing content. As I said the other day, in relation to Jack Valenti's most recent act of public self-humiliation (er... I guess that's what they call PR)
"The content industry has been trying to force the costs of secure IP on everyone BUT themselves. First users, then ISPs, now electronics manufacturers. When the hell will they figure out that securing their content is their own damn problem? It's like they can't figure out how to lock their own door, and instead of building a better lock, they'd rather criminalize the act of using a doorknob - er, excuse me, "wall-circumvention device." Obviously, that was a subversive Freudian slip.
Okay, so maybe recycling comments is bad form, but its even more prescient now than before.
That being said, feel free to call me hopelessly optimistic here... but I sense the tide turning.
Okay, I can hear the collective huh? out there, but I'm saying this seriously. I think there's two indicators that may mean the tide is turning away from the property rights hawks and toward the rest of us.
First, the Senate has gotten into the game. Sen. Boucher has given the RIAA flack recently about copy protection schemes and digital watermarking, and Sen. Hatch has voiced on at least one occasion that the DMCA may not be working. ("Hey, no kidding, Orrin!?")
Second, the Supreme Court has gotten into the game. Last year's Tasini decision (look it up on Findlaw) was the first subtle blow to content owners, and I think the Eldred appeal, if the Court strikes down the Mickey Mouse Protection Act, may be the next.
To paraphrase Churchill, I'm not saying this is the end. It's not even the beginning of the end. It may, however, be the end of the beginning.
Excuse my proselytizing, but where that ends is up to you. Email your Congressperson about the SSSCA. I don't care - tell them you think Hollings is a weenie. Just make yourself heard. If you've got time to peruse Slashdot, you've got time to write the damn email. And that doesn't even have to be in HMTL.
What are you waiting for?
Hey - I think paying Mariah Carey $28 million not to sing is a good deal. 'Cause, damn, I didn't think we'd ever get her to shut up. Maybe Britney Spears will make us an offer too?
it's pathetic but anybody who disagrees with anything you say just has to contact who is hosting/providing/carrying your traffic with a big scary legal letter and voila... you're shutup without so much as a word in sidewise
As I always say when I write these kind of posts, IANAL. That being said -don't take this personally, but this is just plain wrong. One of the anomolies of the Communications Decency Act was that it contained this little-known provision (47 U.S.C. 230) that ISPs could not be held liable as publishers of content that was in any way injurious. This provision was one of the few significant sections of the Act that survived the Supreme Court's invalidation of the CDA in ACLU v. Reno .
This provision did not affect IP law (i.e., the DMCA still applies) but it means that the sort of C&D letters you're talking about rarely have any effect. ISPs whose legal counsel have any wherewithal ignore them, assuming anyone ever even bothers to write them. While minor hosts who may not have a lawyer could fall for such C&D letters, this behavior may constitute abuse of process or any number of various "business" torts under unfair competition law.
In fact, even when information posted is blatantly defamatory, the ISPs themselves are protected - in order to promote "robust" expression on line. (The poster, if s/he can be found, remains liable.)
C&D letters are far more effective when IP issues, circumvention devices, etc., are involved. Hence, if I did in fact "contact the site admin for Slashdot.org" in order to "shut you up", they would likely (and fortunately) kindly tell me to blow it out my ear. And hallelujah for that.
Just a few notes, with the usual disclaimer - I'm not a lawyer. So take this for what you will.
Legally, pornography is 'free speech,' that is, it is protected by the First Amendment, until it reaches the level of the obscene. When's that, you ask?
Beats the hell out of me. This is the source of the famous quote on obscenity, "I know it when I see it." But that's that - something that is simply lewd is protected by the First Amendment; something that is obscene is not.
As for fair use, it cannot so easily be divorced from the idea of free expression. Several legal scholars, including Lawrence Lessig, Yochai Benkler, and Nimmer - a famous authority on Copyright - have argued that the IP clause of the U.S. Constitution is limited by the First Amendment.
That's to say that Congress's granting of "exclusive rights" for the advancement of progress in "Science and the Useful Arts" is limited by the often opaque First Amendment analyses for which the Supreme Court is famous - there's a balancing test between the government's interest in propounding the regulations or legislation in question and the public interest in free expression.
This is what is afoot in the Eldred v. Ashcroft case that the Supreme Court recently agreed to hear (on the Mickey Mouse Protection Act). While it will be some time before arguments are made, you can be sure this issue will come up, and you can be damn sure that someone (probably a dissenter) will be making the arguments that the public interest in free expression constitutes a boundary limiting Congress's power to grant exclusive rights.
Anyway... that's my inflation-adjusted $.02, take it for what you will.
Let me weigh in on Economics 101. This fictitious argument that a "dozen competitors in the same small geographical area" will all "sell at a loss and die" may be the case.
You know what I say? Great! That may be, and then went the industry converges on a few major DSL players, we'll know that natural oligopoly is the status quo for the DSL industry. And every time someone pulls out the antitrust argument, you can say 'we tried that'.
Or you can simply declare that competition won't work, and dictate that the network owners get to do whatever they damn please. Oh, and because they're earning super-competitive profits, they'll branch out to provide DSL to rural communities where its not profitable to do so.
Long pause. [Insert "huh?" here.] Not profitable?!? If any mechanism is going to get rural broadband off the drawing board, it will be market pressure, not a oligopoly of telecom companies earning supercompetitive profits on what amounts to a state-granted monopoly.
The economies-of-scale argument is irrelevant. Because the network already exists, the CLECs plugged into the Bell networks have already made the scale investments. It's there to be taken by anyone, given that they have open access to the essential facilities.
The real question is whether you want to allow the Bells to have to fight off competition with superior service, or whether you want to assume that competition will ultimate tank, and just do away with that whole "free market" thing. Because we all know that's a crock, right?
Indie DSL providers may all go belly up, but we owe it to ourselves to figure out whether that's going to happen. Tauzin-Dingell is corporate rent-seeking, plain and simple.
Judge Patel, a jurist who has most decidedly taken the side of the plaintiffs in the Napster case, wants to make her decision airtight. There's no way that Napster will be able to appeal the decision to the Supreme Court if she allows the defendants to explore every possible line of defense before they lose the case.
I will join the long line of scholars, lawyers, and laymen who rightfully criticized the Napster opinions, not for their politics, but for their inartful application of an incompetently-drafted law. Judge Patel's previous opinions have been nothing for her (or, more likely, her law clerks) to be proud of.
That being said, hearing such conspiracy-theories that a life-appointed judge is somehow "in the pocket" as opposed to just plain incompetent advanced by some, including those who claim to be law students, is nothing short of irresponsible.
Not to mention incorrect. As some, including Mr. Fair Use Guy, have wrongly suggested, Patel seeks to insulate her opinions from Supreme Court appeal.
One who claims to be a law student should know that Patel's decisions are appealed first to the Ninth Circuit, and then to the Supreme Court. And while the three-ring-circus-like Ninth Circuit is wholly unpredictable, capable of disputing ruling such as whether the sky is blue, the Supreme Court would not touch the over-litigated quagmire that is Napster with a ten-foot whatever - it not federalism, there's no circuit split, and there's not a damn interesting issue to be found in ten billion pages of pleadings.
It will be a cold day in hell before the Supreme Court agrees to hear any of the Napster decisions. Jerry Falwell will smoke crack before the Court hears Napster. John Katz will write a useful article before the Court hears Napster. Microsoft will release WinXP on a GPL, disco will return, and someone will actually mod up one of my postings before the Supreme Court hears Napster.
The Ninth Circuit is the end of line - and Patel can't do a damn thing to stop the Ninth Circuit from reviewing her - as they've proven themselves willing to review damn near everything. So ditch the conspiracy-theory crap, and recognize bad law when you see it.
I commend unto you Hanlon's Razor: "Never attribute to malice that which can be adequately explained by stupidity."
does this apply to www.companynamesucks.com? Will they start allowing these again?
Man... where has everyone been? "They" never stopped allowing [Insert Your Name Here]sucks.com. Let me say first, IANAL. That being said, there are two mechanisms preventing cybersquating -
1) ICANN's UDRP (Uniform Domain Name Dispute Resolution policy), which virtually everyone agrees to when registering a domain name (depending on whether its a ccTLD or gTLD) and
2) the ACPA (Anti-cybersquatting Consumer Protection Act), which is a U.S. law.
I've done a little research on these mechanisms, and most of the Slashdot/Wired/ZDNet coverage has been hopelessly biased against corporations. And I'm saying this objectively.
The deal on these is that there are three general criteria that drive both:
1) the domain name of the site,
2) the content of the site, and
and 3) your conduct in registering the domain and dealing with whomever you're criticizing.
If you're domain name is sufficiently different (you can't criticize companyX at companyX.com), you site is actually anti-company X, rather than being some lame-ass porn portal, or worse, you don't use the domain at all, and you don't f*ck around with your WHOIS info - that is, you put in your real information, and don't pull any of the extortion act, chances are, no one is going to yank your domain.
The problem is that most of the guys losing their domain names are guys like Zuccarini (look him up, the FTC's been after him) are just hiding behind free speech arguments instead of actually owning up to the fact that trying to extort cash out of the corporate monoliths they attack. And in the meantime, they're screwing up the First Amendment law for the rest of us by goading Congress into legislation like the ACPA. For a fine example to us all, check out sucks500.com.
If you're down on the fact that cybergriping is getting squeezed out, mercenary cybersquatters are just as much to blame as "They" are.
Oh, and by the way, this case was about a zoning ordinance. Doesn't anyone read these things before they get posted? "...and the Mute, he played us a righteous dub..."
"Duh," I think, is a rather appropriate response here. Everyone goes on & on, wah wah, about 'reasonable expectation of privacy.' Bah! That applies to third parties. You never have a reasonable expectation of privacy concerning the guy (or girl, as in this case) on the other end of the line disclosing the content of the conversation to another person. If you're a bad judge of whom to can trust, that's your problem. The Fourth Amendment protects you from law enforcement, not your own stupidity.
So who the heck thinks that its any different for IM or email? This guy hasn't a snowball's chance in hell.
Let me start by saying IANAL - so this isn't advice. If you're looking for pro bono help, contact the EFF or someone.
That being said, it looks like its yet another example of the ol' "substantial non-infringing use" argument. This is the same logic that Sony floated to get the VCR past Hollywood's objections back in the day. For anyone interested in poking around on FindLaw.com, that's Sony Corp. of America v. Universal Studios, Inc., 464 U.S. 417 (1984). See also Vault Corp. v. Quaid Software, Ltd., 847 F.2d 255 (5th Cir. 1988).
The basic idea is that the VCR was a 'staple article of commerce' - it was widely used for legitimate, unobjectionable purposes, such that this value outweighed any infringing conduct that it might facilitate. I'd like to hear what any other law-oriented folks out there think.
Can the Flash Advance Linker be construed as a staple article of commerce? Isn't this the same argument that Diamond made to avoid an injunction on the Rio?
On the one hand, the back-up capacity of a product always lends creedence to the substantial non-infringing use argument. And suppressing the device to prevent public-domain games from entering the market might even be construed as misuse of copyright (reference Napster's counterattack on A&M... but I digress...)
On the other hand, notice of alleged infringement goed toward undermining the 'staple article of commerce' argument. The Ninth Circuit's Napster opinion suggested that the 'staple article of commerce' argument only went toward the knowledge element of contributory infringement, and thus didn't matter, because the evidence demonstrated that Napster clearly had knowledge of the infringing conduct.
Come to think of it, I don't know of any distributors ever making this argument. Particularly when no one has raised any arguments about contributory infringment.
So what do all you IP types out there think?
It's thinking like that that promotes the Mickey Mouse Fan Club. And I don't mean the Mouseketeers.
It's great that you want to leave something to your children. But a revenue stream in the form of an interminable copyright is not the way it's supposed to be done.
When the Founders drafted the IP clause of the Constitution, they inserted the phrase "limited times" to prevent that from happening.
And honestly, I don't think the fact that you can leave your work's future revenue stream (assuming its a King-esque blockbuster) to your kids is going to give you enough marginal incentive to publish the next "Gone With the Wind" whereas before, "eh... its just too much trouble."
Discount that revenue stream to present value, my friend, accounting for inflation and transaction costs, and you will find that for the cost of a Big Mac invested in a trust fund today, you can leave just as much to your kids as if your Magnum Opus were protected indefinitely.
Many scholars in the legal community have taken to referring to the Sonny Bono Act as the Mickey Mouse Protection Act, reflecting the fact that every time major corporate interests in IP (such as Disney's in its early content) threaten to fall into the public domain, these interests run to Congress for another extension.
Of course, this wasn't really about bringing us in line with EU directives; it was just a convenient cover to save Mickey's ass. Hence, you can bet your bottom dollar that in twenty years, when the most recent extension runs out, the IP lobbyists will once again descend on Capital Hill.
What this case is all about is whether this is unconstitutional. Activists like Prof. Lessig and others have argued that the Copyright Clause of the Constitution is limited by the First Amendment. Because IP rights have to be granted in the name of "advancing progress", there's a real question about whether or not giving Disney another two decades of revenues advances anyone's interests but their own.
Also, because the Constitution only grants authors rights for "limited times", granting an unlimited number of extensions, (20 years, every 20 years) constitutes a grant of an unlimited right.
And I don't think anyone needs to be a lawyer to figure that one out.
And not a moment too soon. Someone's got to do something about all these f*ckin' cloned mice running around.
Okay. Not funny... I know. Mod me down for that.
Here's a thought. Academic journals cost a fortune because they've got 100 times the content of Newsweek and 1/100th of the subscribership base. The subscriber-to-verifier ratios too damn low to keep them reasonably priced. They're not overpriced because there's some Hearst somewhere riding high on the hog off subscriptions to the Okipenoki Journal of Internal Medicine - its just supply and demand.
If you introduce a successful, free journal, you'll only further undermine that market. Now I don't know about you, but I'd rather see the error costs manifesting themselves as a few bright folks not getting published rather than a couple dozen fruitcakes pushing theories about how the government is leasing Area 51 to Martians.
It sounds like Soros would substitute peer review (not much sh*t, but good sh*t) with Peer-2-Peer review (not good sh*t, but alotta sh*t). I'm not sure this is the trade-off we want to make.
The journal system may suck - but maybe that means we should be further subsidizing the market, rather than trying to explode it.
This is one more illustration of why the DMCA reads as veritable "What Not to Do" Guide for statutory drafting...
To summarize the language of the DMCA - "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any [circumvention] technology, product, service, device, component, or part thereof..." 17 U.S.C. 1201(a)(2).
If the cable that Colin tried to import is prohibited under the DMCA, then Marcus Comstedt's Programming site, whose URL was posted previously, still consists of "offering to the public" the "technology." Therefore, to the extent the import is prohibited, so is disclosing how to improvise one.
And fair use? Yeah - nevermind that. Doesn't apply to circumvention technologies. Hell, even Slashdot may be on the hook for hosting this discussion because the safe harbors for ISPs don't apply in Sec. 1201.
Recall what happened when 2600 was enjoined from posting DeCSS. Following the issuance of the injunction, in true keeping with 2600 style, the site just linked to sites where you could get DeCSS. The court wasn't amused, and that was enjoined too. And while no one is foolish enough to pursue claims on these grounds (as much as the EFF might appreciate it) the mere fact that the DMCA permits such actions exemplifies why its passage was an unmitigated catastrophe.
The suggestion that 802.11b security issues may not pose a problem reflects a cavalier take on a nuanced problem.
While the benefits to data mapping wireless far outweigh the risks to facilitating users of Snort/Crack (noun, not command) apps, this doesn't mean we should forget about security. The aforementioned "crackers and script kiddiez" impose costs on the system that must be noted. It's far wiser to look down the road than to burn the bridge when we get there.
And don't think commercial ISPs wouldn't love to see Wi-Fi whacked in its infancy. There's interests lining up behind strangling the babe in its crib.
The QoS may be there - while I was under the impression that current traffic maxxed out the DSL pipe, I'll just assume I'm mistaken - but that still doesn't explain how Vista is going to protect their own wireless traffic nodes (forget the end-user) from mobile attacks.
Wouldn't they have to deploy high-end security for each router that gets an antenna to prevent every deadbeat with an 802.11b device and some sniffing technology from surfing for free?
I may be showing my ignorance here, but does this mean that each subscriber is going to be broadcasting WiFi to the neighborhood?
Doesn't this make the whole network more susceptible to wireless attackes by AirSnort and WEPcrack technologies?
Or am I on crack?
TO: Corporate-control conspiracy theorists
From: Asst. to the Voice of Reason
Re: Demand for Linux Support
It seems to me that two strings of this conversation dovetail into the same insight, which seems to cut against the Linux doom-sayers. Those arguments are: 1) that Uncle Sam is too incompetent or salary-disadvantaged to hire good OSS support, and 2) that the Gov't is completely controlled by corporate interests...
Let's just assume for pedagogical purposes that these assertions are valid.
Both naturally suggest that if The Hill were to send out a broad mandate for inter-agency OSS adoption, that this would serve the republican (small r) process. And why the hell is that? Well, think about the following:
1) it would turn Uncle Sam's rhetorical support for non-proprietary standards into real action, so even if you're a raving federalist, OSS companies are your boys because their influence will ulimately downsize the gov't labor force, leaving more to the private sector, and popularize the market for IT support; and
2) Becuase your assuming the technocrats are too dense to hire good IT, they'll be forced to contract out the wazoo for their support. Why? Because its easier to seek funding for technical support in your Appropriations requests that it is to seek personnel increases- that's obvious, right? You're not going to Congress and saying "my agency needs more people," you're saying "my agency needs technical remedies to enforce YOUR mandates."
So even if you've got a cynical outlook on the republican (small r) process, there's concentrated corporate interests that will line up behind OSS, thereby ultimately loosening the grip of proprietary standard-mongers.
"...And the Mute, he play us a righteous dub..."
The skepticism with which some of the early posts view this possibility is disheartening. Some may forget that the U.S. Government spent a fortune in the 1980s buying computer equipment from Wang in a desperate and untimately unsuccessful attempt to prop up that failing company. When Wang (inevitably) imploded in bankruptcy, Uncle Sam was left holding the bag with a lot of equipment and no support. The point? It didn't make much sense to buy Wang, and "credible" reports may argue against adopting Linux, but if powerful agents on The Hill are backing a project, deals go through in spite of conventional wisdom. To the extent that Weathersby's Machiavellian approach to Hill politics fosters the adoption of open source, his efforts are to be commended - and supported - such that for once, the log may roll in favor of diffuse interests. Winter