if this passes as described, our government will have gone from simply being "out of line" to being "batshit crazy over the line" and will deserve to be destroyed, burnt down, etc, etc.
"for the corporations, by the corporations" my shiny metal ass.
why the government needs to get involved in completely voluntary and non-essential cell phone contracts I have no idea. if you don't like a cell phone contract, don't sign it. if you don't like any cell phone contracts, start your own cell phone provider and offer your great terms and rule the world.
However notice the word "SIGN". Ie put a pen onto a contract.
Now we are talking. Let's (instead of this bill) simply say that if a record company wishes to sell a CD that does not fall under fair use, all they have to do is get your signature on a piece of paper in a proper contractual setting. That's fair to me on all sides.
You see, the record company (or store selling their weird wares) would have fun providing the infrastructure for all this -- lawyers, witnesses, signatories, notaries, etc. Yet they would have the freedom to do this, if they really wanted.
I imagine very, very long lines at Best Buy where Joe Consumer is waiting for the next teller. And I imagine Joe Consumer putting the "CD" back in disgust and leaving the store. And I imagine Best Buy (and Wal-Mart, etc) letting various RIAA companies know that these new goods are not exactly flying off the shelves and are causing huge problems.
That is an offer, but if I can't propose my own terms in response to their offer then no bargaining can take place. And if I don't accept their offer they merrily chalk it up as "piracy" and get my money when I buy CD's to burn a distro, works downloaded with permission or my own damn files.
I wonder if this is anything like saying: I walked up to the vending machine and offered it $.25 for a can of Coke. It didn't accept it, so I just hit it really hard and made it give me a can of Coke anyway?
Or is it more like: I visited a website, and it said that I could download this cool program only if I would only use it for educational purposes. I couldn't bargain with the website itself, so I downloaded it anyway and used it to make some neat stuff for my friend's business?
Do you find being taxed on blank CD media to be a particularly good solution? I think by the tone of your last sentence, the answer is no.
As a more direct response, you can indeed write any of the RIAA companies and offer them whatever offer you want for whatever music you want. Just because it is a laborous process, and/or they are certain to reject the offer does not mean it cannot be made.
Sounds like a fun thing to tackle this weekend. Offer Capitol Records $50 to get the collected works of one of their artists burned to DVD in FLAC format. Funny thing, I don't think they'll accept. Ah well.
And that is precisely why Fair Use must trump anti-reverse-engineering laws
Yes.
and similar terms in contracts, because such terms completely and irrecoverably throw off one of these balancing acts... and in favor of a "right" that didn't even exist ten years ago!
No, no. No. You are not harmed in not being able to listen to Britney Spears' new album on your Linux box, if you accepted a contract when you bought the crippled album that stipulated that it may only be played on a BritneyBox (or whatever). We can debate on whether you "Accept A Contract" by buying what looks like a normal CD off the shelf of Best Buy, but contract law must not be voidable by the vacuous and vaporous term "Fair Use".
I tried to bargain with the DVD before purchase, but it refused to answer. Then security told me to leave because I was scaring away their consumers.:)
I didn't say the DVD would bargain with you, or that any member of the RIAA would bargain with you. Their bargain (for now) is "take it or leave it". The proper response is to "leave it" if the "it" contains DRM that you disagree with.
While a hundred potential killees are give their right to live.
It is debatable whether the right to live can be given or taken away. What is more correct is that these potential killees are given the right to have their killers be in trouble if they are caught, and if the killing was viewed as not being necessary to the society.
The "clicking a mouse" EULA is a "hidden" type of nonsense that is both post-purchase and absolutely evil and vile. That is absolutely not what I mean by contract. Also it is arguably worthless, but I digress.
If software (or music, or books, or movies, etc) was sold such that there was a real contract involved, then no amount of "Fair Use" whining should be able to void the contract. This bill purports to allow just that, if the criticism is to be believed.
Oh! You do realize, of course, that CDs, DVDs, books, and computer software are sold as goods under the terms of the Uniform Commercial Code, the uniform contract that governs all transactions taking place in a retail venue? And that "EULA" of which you speak is nothing more than wishful thinking? Yeah, I thought not... (And before you utter "UCITA," kindly observe that UCITA is not 'U' (uniform) at all. Only two or three states have enacted it. And several states have expressly enacted anti-UCITA provisions to their UCC regs.)
I'm fine with that. I vote that record companies that want to sell their music with DRM not sell their goods under the UCC if they do not want to comply with it. That should make it suitibly hard enough that such music is not sold, and nobody's rights have been limited. Also, though, I generally view a "EULA" as one of those "hidden" things inside the box that you are asked to agree with post-sale.
Questions: (1) Does IBM license DB2 under the UCC? (2) Is it possible to license/sell a book where the sale is not covered under the UCC?
By "bargained away" I did not refer to the passing of laws in recent years, I meant the particular case of purchasing a single DVD that you knew was encumbered by DRM.
Copyright used to be for limited times and for the enrichment of the public domain. That contract was broken with the Micky Mouse act and other extensions. That contract was broken by putting DRM on everything. That contract was broken by requireing EULA after sales that restrict what cannot be restricted by copyrights.
1. Copyright in general is not even necessary and could be handled simply via contract law: "I will sell you this book for $10, but you cannot copy it." 2. I would be fine with abolishing the mickey mouse act and other extensions. 3. EULA after sales are not contracts, they are crap and vile and evil. 4. I (or you) can print a book or record an album and sell it under any contract or license we would like, including one without any restrictions on copying whatsoever.
PS the GPL is a license, since it grants license to do what you cannot (distribute and crete derivative works) that you otherwise have not. EULAs are contracts because they are trying to take away what you are allowed to do and (is supposed to) offer a replacement ability to compensate.
The GPL is a license and a contract. You can do these additional things (make copies, etc), but only if you also don't do these other things (not include source).
Got it?
This proposed bill would remove the freedom of the artist who wants to offer their art, music, books, code, whatever, under the contract they would choose and have that contract be enforced. Do you dispute that?
EULAs and the rest of it are just varieties of fraud, pure and simple. They exist only to make the consumer give up rights and safeguards that should be, and actually often are, protected by law.
I could agree with this sentiment. I look forward to the "contracts" line at Best Buy. My intended general point is that -this particular bill- gives too much carte blanche in the whole area of dominion of Fair Use over -real- contracts. I.e., the kind where we have a lawyer, or a handshake.
Indeed, it is painfully obvious that anything printed on the box is not a contract if you attempt to take back a game because its not "The greatest FPS ever" or whatever it says in lurid letters on the front. The same companies that want their tiny print on the back treated like a signed, considered, negotiated contract would be fucked if they were held to the same standard that they want to hold the consumer.
Fantastic line of reasoning. I like it. Things printed on the box should be enforced.
And, since we mention the consumer, where does he/she go to register additional conditions on the seller? Where do I write in "must not require patching for basic game functions on pain of 200% refund"? How odd! There doesn't seem to be a place for that. Again, the idea that a DVD box is some sort of contract benefits only one party: the seller.
I disagree. If the DVD box was a contract it could certainly benefit the consumer. As you pointed out, if it said "the best film of the year" on it and it was not the best film, you would be entitled to a refund. If it said "this product is protected by DRM, and by purchasing this disc you agree to not circumvent it" then you would know "hey, I don't want to accept this, I'll by a different movie".
But this is all digression, the main point is that a "real contract" should not and must not ever be subservient to a "generic fair use" argument. Thank you for clarifying and helping me to clarify.
If someone prints "Must send us first-born child" on a box it is ridiculous to imagine that anyone should be held to that.
That is already illegal based on already existing law, and thus such a contract would be invalid to begin with. That is the balancing act between a parent's "right to sell their children" and the child's "right not to be sold". All rights are fictions, created in society for its benefit. A society that disgregards the basic tenets of contract law is a defunct society, for that kind of law is quite nearly as innate as it gets, and harkens back to "I'll give you this pointy rock if you give me that apple".
o not kill". So one person is deprievd of their right to kill another. While a hundred potential killees are give their right to live. One example of where a law will increase freedoms *in general*.
A very good example, but that does not summarily prove that another particular law will also increase freedoms in general. In particular, I would argue that a -generic- "Fair Use trumps Contract Law" law would certainly decrease freedom by a large and untenable degree. Does the freedom to wantonly disgregard the terms of a contract you have freely entered into outweigh the freedom to offer a service under a contract, and have that contract honored? I think not.
As an aside, also, the "do not kill" law is a law which is violated quite often by our own government, both against those it has imprisoned, and against those with which it has declared war. Among others, of course.
The guy seems dead serious. Maybe you find it funny, but it appears he is indeed supporting TPM and declaring that Fair Use is bad.
"Un-codified" fair use.
agreed, "un-codified" fair use, where "fair use" is superior to contract law. I should have every freedom to both offer and accept offerings of content bound by the most severe of restrictions possible, even "not even you can watch this even once". Why should such a contract be illegal? Why should the person who openly accepts it be permitted to defy it?
"If HR-1201 becomes law, every consumer could legally hack any TPM by claiming fair use, and as fair use isn't codified, there would be as many definitions of it as there are consumers. Consumers would be legally sanctioned to break their contracts with the content provider. No sane business operator enters a contract in which one party has the right to disregard its terms at will, but that's what HR-1201 permits. That hated TPM would disappear from the market, as there's no reason to employ a lock if everyone has a legal right to the key. But as TPM leaves, so do the digital offerings that come with it."
This part is actually correct, ladies and gentlemen. To pro-Linux folks, next time, think about the GPL as well. Consider the GPL a Technology Protection Device -- you cannot copy or improve a GPL-licensed technology without adhering to the GPL. If Fair Use is held above contract law, and Fair Use is not properly defined, then the GPL (and copyright in general) is useless. All that would be required is for a company (SCO perhaps) to argue that "hey we bought this code fair and square, and now its GPL license is impeding our 'fair use' of it in writing new software of our own."
Contract law must be held above Fair Use. Period. I am a broken record on this subject, but while the DMCA is a painfully stupid and bad law and it should be removed, Fair Use must not be a reason for breaking contracts. Don't enter into contracts that you do not agree to be a party of. As long as it is clearly stated on the CD, DVD, or software what the limitations are of the contract under which it is offered, then it falls to the consumer to either fully accept or refuse it. Not to buy it anyway, and/then/ bitch and moan about their "fair use" rights, which they had already bargained away.
every law that passes by definition limits freedom. if you would like to be rid of your freedom to license/your own content/ under the contract you would decide to offer it under, be my guest. don't go making decisions for me or thousands of other musicians, programmers, and artists and create blanket laws against DRM or induce compulsory licensing:
If you like the idea of compulsory licensing, I hope you like the idea of compulsory labor. Are you a COBOL badass? Guess what, ACMESoft can compel you to write COBOL code for them at $15/hr, no matter what other companies may be willing to pay you. Do you like this idea? If not, then you should re-think any kind of attachment to compulsory licensing. Let's imagine that 2000 persons in the United States are very, very good at COBOL. Guess what, you are now a collective "monopoly", how DARE you charge $100/hr for fixing and maintaining COBOL code!? What, "anybody" can learn COBOL? Just like "anybody" can pick up a $50 pawn shop guitar and start playing?
yes, the dmca is horrible and bad and should be summarily destroyed. but contract law is moreimportant than fair use and must be enforced above it.
as TPM leaves, so does the digital content that goes with it.
Good riddance to bad rubbish.
However I still hold that contract law is more important than Fair Use, and that if you enter into a contract limiting your Fair Use, that is your decision. Once you've entered the contract, don't bitch about your Fair Use, which you bargained away.
If someone wants to distribute TPM without a contract, they are indeed fools, because then Fair Use would certainly come into play.
Ah, I very much think I understand your position better now. My apologies.
I would still argue that we should, as a society, indeed "call for government legislation to point shotguns at people who break contracts and say 'do not break contracts or else'". Buying music under a contract that stipulates that you may not circumvent its copy protection is a contract like any other. If I offer to pay you $5000 for some podcast software and you accept, but your stipulation is that I cannot use the software for more than one podcast, but when I take delivery of the software, and pay you, I run a dozen podcasts with the single license that I purchased, shouldn't I be in trouble?
I do dislike the DMCA very, very much and it is a vast over-reach of simply enforcing contract law -- but that is its primary function. I do not think that the government should say "do not attempt to circumvent any copyright protection", it should more directly say "do not attempt to circumvent any copyright protection which you are contractually obligated not to circumvent", or, more simply, "do not break contracts". I believe contracts are more important than copyright and also more important than "fair use". You seem to believe that "fair use" is more important than contract law, and I would simply argue that a system where "fair use" has a higher precedence than contract law is a less free system than the inverse. That is my chief attempted "point" here: contracts should be enforced at a higher priority than "fair use", or else there are huge breakdowns in the entire system as people attempt to define "fair" differently.
As a point of commentary -- most "valid" DMCA cases of which I am aware attempts to prosecute folks who had already broken contract law or who were directly facilitating the breaking of contract law.
Jury Convicts Man in DMCA Case -- man was selling DirecTV cards for free TV access. Both the man and his customers were violating contract law already, regardless of copyright or the DMCA.
The problems with the DMCA are similar to those of any law -- the abuses of power and limitations of freedom that come with every single law that has ever been passed. They are exascerbated by the bizarre intermingling of copyright law, contract law, fair use, and technology, and the DMCA is a very, very bad law. But the principle of it being illegal to copy something you are contractually obligated not to copy is not a new principle to the DMCA or even copyright, it is a simple principle of contract law, which goes back to "I'll give you this sharp rock if you give me that apple."
oh please.. that's a straw man and you know it. A monopoly is defined as the absence of a free market. Control of 80% or more of a market can be considered legally and functionally a monopoly, even if not pure.
If someone has a monopoly on troll dolls, who is harmed? Who cares? Monopoly is only, only, only important for necessary markets.
That's like responding to complaints regarding the business practices of standard oil by saying "go drill your own well, it's a free market".
Absolutely not the same. There is a finite amount of oil. There is not a finite amount of music. You can create your own out of thin air. Do that with oil and you would be a quadrillion dollars richer. Every Day. The other side of this is that you can absolutely live a life without ever buying a gallon of petroleum. Perhaps you should. As a point of fact, I buy biodiesel, which runs in my unmodified diesel-fueled car. Perhaps if an abusive monopolist controlled the oil, we would already have better alternative fuels, perhaps not. But you don't need oil to live, nobody is directly harmed by being denied oil.
I see, so a nihilist 3rd world lifestyle can be considered "living"? If you honestly believe that why don't you save yourself some money and live out of a refrigerator box with a single pillow and blanket and no clothes. after all, all you need is shelter, food, and water. None of that fancy meat stuff either, only functionally nutritiious dog food, after all you don't need good taste for food to be useful.
The amish live without computers, software, cars, recorded music, or films. They sing for each other and perform plays for each other. Now it is/you/ who are pusuing a straw man, for I did not say that I did not personally value these things. In fact, I pay for them by working fairly hard. It is a tradeoff I make. However, if TimeWarnerDisneyFOX music was only offered on DRM DVD at $50 a song, likely I would simply stop buying/their/ music as it is no longer worth it to me. I would not be harmed by their decision to offer/their/ music at these terms. Likewise, if Volkswagen merged with DaimlerChrysler as well as GM, and all of a sudden they were all offering cars starting at $100K, then I would not buy a car from them. I could move to Boston or New York or London and have a pretty normal, modern life without a car or owning a computer.
I call bs, and anyone with a modicum of economic sense would call the same.
I simply disagree that you are harmed by being denied "my fair price" music, "my fair price" films, "my fair price" computers, or "my fair price" cars. If you think you are being harmed by being denied access to any of these at some terms that you decide are "fair", then I simply disgree. You are not entitled to any thing that someone else produces with their own labor. Just as I do not work for free, or for whatever abstract terms my employer might deem to be their idea of "more fair".
If you like the idea of compulsory licensing, I hope you like the idea of compulsory labor. Are you a COBOL badass? Guess what, ACMESoft can compel you to write COBOL code for them at $15/hr, no matter what other companies may be willing to pay you. Do you like this idea? If not, then you should re-think any kind of attachment to compulsory licensing. Let's imagine that 2000 persons in the United States are very, very good at COBOL. Guess what, you are now a collective "monopoly", how DARE you charge $100/hr for fixing and maintaining COBOL code!? What, "anybody" can learn COBOL? Just like "anybody" can pick up a $50 pawn shop guitar and start playing?
Your point "that consumer electronics firms CANNOT BY LAW build non-drm platforms because the copyright holders continue to refuse to license without DRM" does not imply that it is not a free market. There is no harm in not being able to listen to 100% of the music that has currently been recorded or written, let alone the 80% or whatever which is covered by the RIAA de-facto monopoly. You have no entitlement to this music under any terms, and no harm is done to you by denying you the ability to listen to the music under the terms you happen to choose.
Not a single person is stopping YOU from picking up a guitar, writing a song, burning a bunch of CD-R of your song, and selling it to as many people as you would like under any terms you would like.
Every law limits freedom, by definition. A law saying that "music cannot be sold in encrypted format" limits the freedom of all people involved, not the least of which of which the freedom of the artist who wants their original work tightly controlled.
You seem to be going down the road of compulsory licensing, and that is an untenable system. Again, you have no innate entitlement to any artistic work produced by someone else and you are not harmed in being denied access to that work no matter how "culturally relevant" it might be. If you did have an entitlement to it, and you were harmed by being denied access to that work, then you must be able to obtain it for free (or via compulsory licensing). Take a thing like the air you breathe. Let's say (for argument) there was a company in charge of "the air" who charged access fees for breathing. Government's place in that market would be the minimal steps required to ensure that everyone has access to air to breathe, because air is required to live.
Computers, software, cars, music, movies -- these things are not required to live. Nobody has the innate "right" to a computer, or a car, or to a song. To call for the government's resources to point shotguns at the RIAA and say "no DRM or else!" is ludicrous. The RIAA has every right to produce music in the format they which to sell (or not), just as their artists have every right to sign horrible contracts with the RIAA (or not), just as Sam Goody has every right to carry the music in the format the RIAA wants to sell to them (or not), and just as you have every right to buy this DRM format music (or not). None of these choices means anything in the grander sense; "access to music" is not important enough to even spend this time typing about it. There are hundreds and hundreds of musicians NOT part of the RIAA, there are independent filmmakers outside the MPAA. If you care so much about "fair use rights" for your music find music you like offered under those terms.
Besides all that, are you denying that entertainment is important for a society?
Absolutely 100% not. Music, art, film, books -- these are integral parts of who we are. Even if TimeWarnerMGMDisneyParamount all merged and then in a bizarre move locked every bit of "their" copyrighted works away, our society would produce and enjoy all these forms of entertainment.
Are you denying that most Americans would see a culture without TV, movies, music, books, etc. as "backward?"
First of all, that is not (and most certainly should not be) the proper test to start making laws. Secondly, witness the two most recent presidential elections and think about words like "most Americans" and evaluate what exactly you think they think. Lastly, a culture without DRM TV, DRM movies, DRM music, and DRM books is what I propose. I don't understand why you think that translates to "no TV, movies, music, books".
That is, once I've legally purchased a CD, for example
Same as the plumber selling you a toilet. Accept the terms under which the product is sold or do not buy the product. If the product is offered with DRM terms that limit your ability to copy, and these terms are important to you, do not buy.
How exactly would they pay the licensing fees for all the music, assuming the RIAA even let them sell "their" music without DRM
If the RIAA wants to lock "their" music into a DRM format they are welcome to do so. I will not buy such music, and (surprise surprise) I will still find plenty of good music and entertainment. Art, more so than any other information, wants to be free. The point of art is expression. The new music company with the new "non-DRM" optical media format would likely not do any business with the RIAA. Artists that care about that will find customers who care about that. Madonna, Dave Matthews Band, Metallica, any artist -- you are not injured by not listening to them.
The point is that these kinds of things become defacto standards and are harmful to people.... That argument applied to a situation where domestic abuse was not illegal would go something like: "If the victim doesn't like being beaten, then the victim shouldn't piss off the abuser." Well, it's not illegal so it's okay, right?... It neither addresses the problem nor argues a defense. Anyways, I've started to lose my train of thought so I'll stop now, but don't worry about being argumentative.
Wrong. The victim of domestic abuse is harmed. There is no victim or harm in not being able to listen to any RIAA music, watch any MPAA movies, or view restricted art or media. There simply is not. Otherwise they could not charge a fee for concerts, they could not charge a fee for their CDs or DVDs. The reason you're losing your train of thought is because it's jumped the tracks.
Let's go back to the beginning:
Is there harm? If Yes, law may be required to protect the victim. If No, then no law is required. That statement should not be argued. The next statement in my argument is: "There is no harm in not being able to listen to the song ABC from artist DEF via publisher GHI on media JKL." That is the point to attack. Personally I do not think it is attackable, else I would be demanding my free CDs and DVDs from all the artists I'm currently not able to listen to because I haven't bought their albums yet.
Lastly, my statement is intended as the antipode of "Well if you don't like it here in America, you should just leave." Remember, every law that is passed limits some freedom. Even stupid freedom like Joe Consumer's freedom to buy a DRM piece of crap one-time-play DVD. If you don't like DRM crap, I'm not telling you to leave, I'm telling you to make a billion dollars by offering what you claim the people want. Form a mega-pop band and buy billboard space all over the place. Start a website. Publish on CDRW so if your customer doesn't like it they have a place to write their own music over the top. W
Slashdot Mirror
if this passes as described, our government will have gone from simply being "out of line" to being "batshit crazy over the line" and will deserve to be destroyed, burnt down, etc, etc.
"for the corporations, by the corporations" my shiny metal ass.
ok. what's the best of breed authorization/authentication model for ruby on rails?
Well, it's good enough for WebSphere, right?
So... do I have to run it on the "built in" webserver or will it run under mod_python? Doesn't appear to do so.
why the government needs to get involved in completely voluntary and non-essential cell phone contracts I have no idea. if you don't like a cell phone contract, don't sign it. if you don't like any cell phone contracts, start your own cell phone provider and offer your great terms and rule the world.
home recording is getting better and cheaper every day.
However notice the word "SIGN". Ie put a pen onto a contract.
Now we are talking. Let's (instead of this bill) simply say that if a record company wishes to sell a CD that does not fall under fair use, all they have to do is get your signature on a piece of paper in a proper contractual setting. That's fair to me on all sides.
You see, the record company (or store selling their weird wares) would have fun providing the infrastructure for all this -- lawyers, witnesses, signatories, notaries, etc. Yet they would have the freedom to do this, if they really wanted.
I imagine very, very long lines at Best Buy where Joe Consumer is waiting for the next teller. And I imagine Joe Consumer putting the "CD" back in disgust and leaving the store. And I imagine Best Buy (and Wal-Mart, etc) letting various RIAA companies know that these new goods are not exactly flying off the shelves and are causing huge problems.
That is an offer, but if I can't propose my own terms in response to their offer then no bargaining can take place. And if I don't accept their offer they merrily chalk it up as "piracy" and get my money when I buy CD's to burn a distro, works downloaded with permission or my own damn files.
I wonder if this is anything like saying: I walked up to the vending machine and offered it $.25 for a can of Coke. It didn't accept it, so I just hit it really hard and made it give me a can of Coke anyway?
Or is it more like: I visited a website, and it said that I could download this cool program only if I would only use it for educational purposes. I couldn't bargain with the website itself, so I downloaded it anyway and used it to make some neat stuff for my friend's business?
Do you find being taxed on blank CD media to be a particularly good solution? I think by the tone of your last sentence, the answer is no.
As a more direct response, you can indeed write any of the RIAA companies and offer them whatever offer you want for whatever music you want. Just because it is a laborous process, and/or they are certain to reject the offer does not mean it cannot be made.
Sounds like a fun thing to tackle this weekend. Offer Capitol Records $50 to get the collected works of one of their artists burned to DVD in FLAC format. Funny thing, I don't think they'll accept. Ah well.
And that is precisely why Fair Use must trump anti-reverse-engineering laws
Yes.
and similar terms in contracts, because such terms completely and irrecoverably throw off one of these balancing acts... and in favor of a "right" that didn't even exist ten years ago!
No, no. No. You are not harmed in not being able to listen to Britney Spears' new album on your Linux box, if you accepted a contract when you bought the crippled album that stipulated that it may only be played on a BritneyBox (or whatever). We can debate on whether you "Accept A Contract" by buying what looks like a normal CD off the shelf of Best Buy, but contract law must not be voidable by the vacuous and vaporous term "Fair Use".
I tried to bargain with the DVD before purchase, but it refused to answer. Then security told me to leave because I was scaring away their consumers. :)
I didn't say the DVD would bargain with you, or that any member of the RIAA would bargain with you. Their bargain (for now) is "take it or leave it". The proper response is to "leave it" if the "it" contains DRM that you disagree with.
That does make things more clear. Thanks again, and thanks for taking someone whose user name is "MORTAR_COMBAT!" seriously.
What does "TWW" mean?
While a hundred potential killees are give their right to live.
It is debatable whether the right to live can be given or taken away. What is more correct is that these potential killees are given the right to have their killers be in trouble if they are caught, and if the killing was viewed as not being necessary to the society.
The "clicking a mouse" EULA is a "hidden" type of nonsense that is both post-purchase and absolutely evil and vile. That is absolutely not what I mean by contract. Also it is arguably worthless, but I digress.
If software (or music, or books, or movies, etc) was sold such that there was a real contract involved, then no amount of "Fair Use" whining should be able to void the contract. This bill purports to allow just that, if the criticism is to be believed.
Oh! You do realize, of course, that CDs, DVDs, books, and computer software are sold as goods under the terms of the Uniform Commercial Code, the uniform contract that governs all transactions taking place in a retail venue? And that "EULA" of which you speak is nothing more than wishful thinking? Yeah, I thought not... (And before you utter "UCITA," kindly observe that UCITA is not 'U' (uniform) at all. Only two or three states have enacted it. And several states have expressly enacted anti-UCITA provisions to their UCC regs.)
I'm fine with that. I vote that record companies that want to sell their music with DRM not sell their goods under the UCC if they do not want to comply with it. That should make it suitibly hard enough that such music is not sold, and nobody's rights have been limited. Also, though, I generally view a "EULA" as one of those "hidden" things inside the box that you are asked to agree with post-sale.
Questions: (1) Does IBM license DB2 under the UCC? (2) Is it possible to license/sell a book where the sale is not covered under the UCC?
By "bargained away" I did not refer to the passing of laws in recent years, I meant the particular case of purchasing a single DVD that you knew was encumbered by DRM.
Copyright used to be for limited times and for the enrichment of the public domain. That contract was broken with the Micky Mouse act and other extensions. That contract was broken by putting DRM on everything. That contract was broken by requireing EULA after sales that restrict what cannot be restricted by copyrights.
1. Copyright in general is not even necessary and could be handled simply via contract law: "I will sell you this book for $10, but you cannot copy it." 2. I would be fine with abolishing the mickey mouse act and other extensions. 3. EULA after sales are not contracts, they are crap and vile and evil. 4. I (or you) can print a book or record an album and sell it under any contract or license we would like, including one without any restrictions on copying whatsoever.
PS the GPL is a license, since it grants license to do what you cannot (distribute and crete derivative works) that you otherwise have not. EULAs are contracts because they are trying to take away what you are allowed to do and (is supposed to) offer a replacement ability to compensate.
The GPL is a license and a contract. You can do these additional things (make copies, etc), but only if you also don't do these other things (not include source).
Got it?
This proposed bill would remove the freedom of the artist who wants to offer their art, music, books, code, whatever, under the contract they would choose and have that contract be enforced. Do you dispute that?
A fantastic response.
EULAs and the rest of it are just varieties of fraud, pure and simple. They exist only to make the consumer give up rights and safeguards that should be, and actually often are, protected by law.
I could agree with this sentiment. I look forward to the "contracts" line at Best Buy. My intended general point is that -this particular bill- gives too much carte blanche in the whole area of dominion of Fair Use over -real- contracts. I.e., the kind where we have a lawyer, or a handshake.
Indeed, it is painfully obvious that anything printed on the box is not a contract if you attempt to take back a game because its not "The greatest FPS ever" or whatever it says in lurid letters on the front. The same companies that want their tiny print on the back treated like a signed, considered, negotiated contract would be fucked if they were held to the same standard that they want to hold the consumer.
Fantastic line of reasoning. I like it. Things printed on the box should be enforced.
And, since we mention the consumer, where does he/she go to register additional conditions on the seller? Where do I write in "must not require patching for basic game functions on pain of 200% refund"? How odd! There doesn't seem to be a place for that. Again, the idea that a DVD box is some sort of contract benefits only one party: the seller.
I disagree. If the DVD box was a contract it could certainly benefit the consumer. As you pointed out, if it said "the best film of the year" on it and it was not the best film, you would be entitled to a refund. If it said "this product is protected by DRM, and by purchasing this disc you agree to not circumvent it" then you would know "hey, I don't want to accept this, I'll by a different movie".
But this is all digression, the main point is that a "real contract" should not and must not ever be subservient to a "generic fair use" argument. Thank you for clarifying and helping me to clarify.
If someone prints "Must send us first-born child" on a box it is ridiculous to imagine that anyone should be held to that.
That is already illegal based on already existing law, and thus such a contract would be invalid to begin with. That is the balancing act between a parent's "right to sell their children" and the child's "right not to be sold". All rights are fictions, created in society for its benefit. A society that disgregards the basic tenets of contract law is a defunct society, for that kind of law is quite nearly as innate as it gets, and harkens back to "I'll give you this pointy rock if you give me that apple".
o not kill". So one person is deprievd of their right to kill another. While a hundred potential killees are give their right to live. One example of where a law will increase freedoms *in general*.
A very good example, but that does not summarily prove that another particular law will also increase freedoms in general. In particular, I would argue that a -generic- "Fair Use trumps Contract Law" law would certainly decrease freedom by a large and untenable degree. Does the freedom to wantonly disgregard the terms of a contract you have freely entered into outweigh the freedom to offer a service under a contract, and have that contract honored? I think not.
As an aside, also, the "do not kill" law is a law which is violated quite often by our own government, both against those it has imprisoned, and against those with which it has declared war. Among others, of course.
agreed, "un-codified" fair use, where "fair use" is superior to contract law. I should have every freedom to both offer and accept offerings of content bound by the most severe of restrictions possible, even "not even you can watch this even once". Why should such a contract be illegal? Why should the person who openly accepts it be permitted to defy it?
"If HR-1201 becomes law, every consumer could legally hack any TPM by claiming fair use, and as fair use isn't codified, there would be as many definitions of it as there are consumers. Consumers would be legally sanctioned to break their contracts with the content provider. No sane business operator enters a contract in which one party has the right to disregard its terms at will, but that's what HR-1201 permits. That hated TPM would disappear from the market, as there's no reason to employ a lock if everyone has a legal right to the key. But as TPM leaves, so do the digital offerings that come with it."
/then/ bitch and moan about their "fair use" rights, which they had already bargained away.
This part is actually correct, ladies and gentlemen. To pro-Linux folks, next time, think about the GPL as well. Consider the GPL a Technology Protection Device -- you cannot copy or improve a GPL-licensed technology without adhering to the GPL. If Fair Use is held above contract law, and Fair Use is not properly defined, then the GPL (and copyright in general) is useless. All that would be required is for a company (SCO perhaps) to argue that "hey we bought this code fair and square, and now its GPL license is impeding our 'fair use' of it in writing new software of our own."
Contract law must be held above Fair Use. Period. I am a broken record on this subject, but while the DMCA is a painfully stupid and bad law and it should be removed, Fair Use must not be a reason for breaking contracts. Don't enter into contracts that you do not agree to be a party of. As long as it is clearly stated on the CD, DVD, or software what the limitations are of the contract under which it is offered, then it falls to the consumer to either fully accept or refuse it. Not to buy it anyway, and
yes, the dmca is horrible and bad and should be summarily destroyed. but contract law is more important than fair use and must be enforced above it.
summary: don't like DRM? don't buy it.
as TPM leaves, so does the digital content that goes with it.
Good riddance to bad rubbish.
However I still hold that contract law is more important than Fair Use, and that if you enter into a contract limiting your Fair Use, that is your decision. Once you've entered the contract, don't bitch about your Fair Use, which you bargained away.
If someone wants to distribute TPM without a contract, they are indeed fools, because then Fair Use would certainly come into play.
Ah, I very much think I understand your position better now. My apologies.
I would still argue that we should, as a society, indeed "call for government legislation to point shotguns at people who break contracts and say 'do not break contracts or else'". Buying music under a contract that stipulates that you may not circumvent its copy protection is a contract like any other. If I offer to pay you $5000 for some podcast software and you accept, but your stipulation is that I cannot use the software for more than one podcast, but when I take delivery of the software, and pay you, I run a dozen podcasts with the single license that I purchased, shouldn't I be in trouble?
I do dislike the DMCA very, very much and it is a vast over-reach of simply enforcing contract law -- but that is its primary function. I do not think that the government should say "do not attempt to circumvent any copyright protection", it should more directly say "do not attempt to circumvent any copyright protection which you are contractually obligated not to circumvent", or, more simply, "do not break contracts". I believe contracts are more important than copyright and also more important than "fair use". You seem to believe that "fair use" is more important than contract law, and I would simply argue that a system where "fair use" has a higher precedence than contract law is a less free system than the inverse. That is my chief attempted "point" here: contracts should be enforced at a higher priority than "fair use", or else there are huge breakdowns in the entire system as people attempt to define "fair" differently.
As a point of commentary -- most "valid" DMCA cases of which I am aware attempts to prosecute folks who had already broken contract law or who were directly facilitating the breaking of contract law.
Jury Convicts Man in DMCA Case -- man was selling DirecTV cards for free TV access. Both the man and his customers were violating contract law already, regardless of copyright or the DMCA.
The problems with the DMCA are similar to those of any law -- the abuses of power and limitations of freedom that come with every single law that has ever been passed. They are exascerbated by the bizarre intermingling of copyright law, contract law, fair use, and technology, and the DMCA is a very, very bad law. But the principle of it being illegal to copy something you are contractually obligated not to copy is not a new principle to the DMCA or even copyright, it is a simple principle of contract law, which goes back to "I'll give you this sharp rock if you give me that apple."
First, thanks for responding.
/you/ who are pusuing a straw man, for I did not say that I did not personally value these things. In fact, I pay for them by working fairly hard. It is a tradeoff I make. However, if TimeWarnerDisneyFOX music was only offered on DRM DVD at $50 a song, likely I would simply stop buying /their/ music as it is no longer worth it to me. I would not be harmed by their decision to offer /their/ music at these terms. Likewise, if Volkswagen merged with DaimlerChrysler as well as GM, and all of a sudden they were all offering cars starting at $100K, then I would not buy a car from them. I could move to Boston or New York or London and have a pretty normal, modern life without a car or owning a computer.
oh please.. that's a straw man and you know it. A monopoly is defined as the absence of a free market. Control of 80% or more of a market can be considered legally and functionally a monopoly, even if not pure.
If someone has a monopoly on troll dolls, who is harmed? Who cares? Monopoly is only, only, only important for necessary markets.
That's like responding to complaints regarding the business practices of standard oil by saying "go drill your own well, it's a free market".
Absolutely not the same. There is a finite amount of oil. There is not a finite amount of music. You can create your own out of thin air. Do that with oil and you would be a quadrillion dollars richer. Every Day. The other side of this is that you can absolutely live a life without ever buying a gallon of petroleum. Perhaps you should. As a point of fact, I buy biodiesel, which runs in my unmodified diesel-fueled car. Perhaps if an abusive monopolist controlled the oil, we would already have better alternative fuels, perhaps not. But you don't need oil to live, nobody is directly harmed by being denied oil.
I see, so a nihilist 3rd world lifestyle can be considered "living"? If you honestly believe that why don't you save yourself some money and live out of a refrigerator box with a single pillow and blanket and no clothes. after all, all you need is shelter, food, and water. None of that fancy meat stuff either, only functionally nutritiious dog food, after all you don't need good taste for food to be useful.
The amish live without computers, software, cars, recorded music, or films. They sing for each other and perform plays for each other. Now it is
I call bs, and anyone with a modicum of economic sense would call the same.
I simply disagree that you are harmed by being denied "my fair price" music, "my fair price" films, "my fair price" computers, or "my fair price" cars. If you think you are being harmed by being denied access to any of these at some terms that you decide are "fair", then I simply disgree. You are not entitled to any thing that someone else produces with their own labor. Just as I do not work for free, or for whatever abstract terms my employer might deem to be their idea of "more fair".
If you like the idea of compulsory licensing, I hope you like the idea of compulsory labor. Are you a COBOL badass? Guess what, ACMESoft can compel you to write COBOL code for them at $15/hr, no matter what other companies may be willing to pay you. Do you like this idea? If not, then you should re-think any kind of attachment to compulsory licensing. Let's imagine that 2000 persons in the United States are very, very good at COBOL. Guess what, you are now a collective "monopoly", how DARE you charge $100/hr for fixing and maintaining COBOL code!? What, "anybody" can learn COBOL? Just like "anybody" can pick up a $50 pawn shop guitar and start playing?
Your point "that consumer electronics firms CANNOT BY LAW build non-drm platforms because the copyright holders continue to refuse to license without DRM" does not imply that it is not a free market. There is no harm in not being able to listen to 100% of the music that has currently been recorded or written, let alone the 80% or whatever which is covered by the RIAA de-facto monopoly. You have no entitlement to this music under any terms, and no harm is done to you by denying you the ability to listen to the music under the terms you happen to choose.
Not a single person is stopping YOU from picking up a guitar, writing a song, burning a bunch of CD-R of your song, and selling it to as many people as you would like under any terms you would like.
Every law limits freedom, by definition. A law saying that "music cannot be sold in encrypted format" limits the freedom of all people involved, not the least of which of which the freedom of the artist who wants their original work tightly controlled.
You seem to be going down the road of compulsory licensing, and that is an untenable system. Again, you have no innate entitlement to any artistic work produced by someone else and you are not harmed in being denied access to that work no matter how "culturally relevant" it might be. If you did have an entitlement to it, and you were harmed by being denied access to that work, then you must be able to obtain it for free (or via compulsory licensing). Take a thing like the air you breathe. Let's say (for argument) there was a company in charge of "the air" who charged access fees for breathing. Government's place in that market would be the minimal steps required to ensure that everyone has access to air to breathe, because air is required to live.
Computers, software, cars, music, movies -- these things are not required to live. Nobody has the innate "right" to a computer, or a car, or to a song. To call for the government's resources to point shotguns at the RIAA and say "no DRM or else!" is ludicrous. The RIAA has every right to produce music in the format they which to sell (or not), just as their artists have every right to sign horrible contracts with the RIAA (or not), just as Sam Goody has every right to carry the music in the format the RIAA wants to sell to them (or not), and just as you have every right to buy this DRM format music (or not). None of these choices means anything in the grander sense; "access to music" is not important enough to even spend this time typing about it. There are hundreds and hundreds of musicians NOT part of the RIAA, there are independent filmmakers outside the MPAA. If you care so much about "fair use rights" for your music find music you like offered under those terms.
Besides all that, are you denying that entertainment is important for a society?
... That argument applied to a situation where domestic abuse was not illegal would go something like: "If the victim doesn't like being beaten, then the victim shouldn't piss off the abuser." Well, it's not illegal so it's okay, right? ... It neither addresses the problem nor argues a defense. Anyways, I've started to lose my train of thought so I'll stop now, but don't worry about being argumentative.
Absolutely 100% not. Music, art, film, books -- these are integral parts of who we are. Even if TimeWarnerMGMDisneyParamount all merged and then in a bizarre move locked every bit of "their" copyrighted works away, our society would produce and enjoy all these forms of entertainment.
Are you denying that most Americans would see a culture without TV, movies, music, books, etc. as "backward?"
First of all, that is not (and most certainly should not be) the proper test to start making laws. Secondly, witness the two most recent presidential elections and think about words like "most Americans" and evaluate what exactly you think they think. Lastly, a culture without DRM TV, DRM movies, DRM music, and DRM books is what I propose. I don't understand why you think that translates to "no TV, movies, music, books".
That is, once I've legally purchased a CD, for example
Same as the plumber selling you a toilet. Accept the terms under which the product is sold or do not buy the product. If the product is offered with DRM terms that limit your ability to copy, and these terms are important to you, do not buy.
How exactly would they pay the licensing fees for all the music, assuming the RIAA even let them sell "their" music without DRM
If the RIAA wants to lock "their" music into a DRM format they are welcome to do so. I will not buy such music, and (surprise surprise) I will still find plenty of good music and entertainment. Art, more so than any other information, wants to be free. The point of art is expression. The new music company with the new "non-DRM" optical media format would likely not do any business with the RIAA. Artists that care about that will find customers who care about that. Madonna, Dave Matthews Band, Metallica, any artist -- you are not injured by not listening to them.
The point is that these kinds of things become defacto standards and are harmful to people.
Wrong. The victim of domestic abuse is harmed. There is no victim or harm in not being able to listen to any RIAA music, watch any MPAA movies, or view restricted art or media. There simply is not. Otherwise they could not charge a fee for concerts, they could not charge a fee for their CDs or DVDs. The reason you're losing your train of thought is because it's jumped the tracks.
Let's go back to the beginning:
Is there harm? If Yes, law may be required to protect the victim. If No, then no law is required. That statement should not be argued. The next statement in my argument is: "There is no harm in not being able to listen to the song ABC from artist DEF via publisher GHI on media JKL." That is the point to attack. Personally I do not think it is attackable, else I would be demanding my free CDs and DVDs from all the artists I'm currently not able to listen to because I haven't bought their albums yet.
Lastly, my statement is intended as the antipode of "Well if you don't like it here in America, you should just leave." Remember, every law that is passed limits some freedom. Even stupid freedom like Joe Consumer's freedom to buy a DRM piece of crap one-time-play DVD. If you don't like DRM crap, I'm not telling you to leave, I'm telling you to make a billion dollars by offering what you claim the people want. Form a mega-pop band and buy billboard space all over the place. Start a website. Publish on CDRW so if your customer doesn't like it they have a place to write their own music over the top. W