It is up to every citizen to interpret the law as best he can, to guide his own actions, since ignorance is no excuse.
We're not talking about some legal grey area here. The law is very clear, and it has been repeatedly upheld by the appellate courts. The unauthorized distribution of copies of copyrighted works is not lawful.
And the exceptions are deliberately vague and broad, for activities which fall outside the commercial realm
You need to read the statues again. The exemptions are exceptionally narrow, not vague or broad.
The quotes I gave are all generic quotes related to the interpretation of copyright law and the fair use exemption.
That's a falsehood. The issues dealt with in the Betamax case are most definitely not generic. They are very, very specific. Please quit misrepresenting the facts, okay?
You're basically telling me "don't stick your neck out, comrade."
I'm telling you that you're an idiot if you think that what you're talking about it really not against the law. It is, and if you do it, you deserve to be punished for it. I just hope that that punishment doesn't end up affecting us all. I'd hate to lose a privilege that I enjoy exercising just because some idiot who thinks he understands the law decided to use it for illegal purposes.
Your interpretation of the case as being about the activity being "entirely within the home" seems naive.
It's not my interpretation, friend. It comes straight out the decision of the district court. You'll find the phrase "entirely within the home" in the text of the decision; Justice Stevens later cited this point in the decision for the high court.
The fact that recording with a VCR takes place entirely within the home is key to finding that the practice is noncommercial. If you start handing out tapes, it moves from the realm of the noncommercial into the realm of the commercial, and can no longer be considered fair use by the standard outlined in the statute. Judge Patel's opinion in the Napster case reinforces this interpretation; the fact that somebody is getting something which they would otherwise not have had (a copy of a copyrighted work) makes it a commercial transaction, even if no money is changing hands.
In particular, the use would need to cause "nonminimal harm" to the copyright holder's commercial interests.
Easy to prove. How many TV shows have been rereleased on DVD? Home recording itself does nonminimal harm; I'm sure it only stands because of the precedent of the Betamax case. The distribution of home recordings is not, and cannot be interpreted to be, lawful because it would, if allowed, have a significant financial impact on the copyright holders.
The whole point is that the DMCA gives copyright holders an alternate way to legally control their content, where copyright doesn't give them the control they want.
If somebody goes to the trouble of wrapping an access control mechanism around their content, it should be illegal for somebody to come along behind them and circumvent that mechanism. If you put a lock on your door, it's illegal for someone to come into your house, isn't it? Same issue.
You're trying to make this out to be about control. That's obfuscation. The DMCA is, in fact, about giving legal protection to the rights of copyright holders.
We have fair use rights, we just can't always exercise them.
More typical liberal-speak. There's no such thing as "fair use rights." The idea is a fiction. You have no right to make fair use of copyrighted works. What the statute says is simply that fair use, when it occurs, is non-infringing. But if a copyright holder wants to prevent you from making fair use of his works-- by contract, or by the imposition of an access control mechanism, or what have you-- that is his right. The DMCA merely gives legal recognition to that right.
Even the fact that it involves a family member would likely be a consideration in an assessment of fair use.
Are you a judge? If not, then it's not up to you to interpret the law. The law says that the distribution of home recordings without authorization is not allowed. It doesn't say "except to family members." It doesn't say "except when nobody gets hurt." It doesn't say "except" at all. Home recording is allowed; distribution of home recordings to third parties is not.
If you want to bring a case before an appellate court to get this interpretation of yours tested, be my guest. I think the odds are better than fair that you'll be found wrong by the judge.
Part of the reason big copyright owners wanted the DMCA is that it allows them to sidestep all this greyness and make it black and white: "you circumvented my protection, you're in violation of the law". It was never that simple with the copyright act.
The anti-circumvention remedies in the DMCA have nothing to do with copyright infringement. This is a common misconception. The anti-circumvention remedies make it unlawful for a person to circumvent a system of access control. This is orthogonal to the question of authorization to copy. One can copy encrypted media with the encryption intact and be guilty of copyright violation without being guilty of unlawful circumvention. One can decrypt encrypted media without copying it and be guilty of unlawful circumvention without being guilty of copyright infringement. The two have nothing to do with each other.
I have read that, and more. I think that you're simply interpreting fair use more narrowly than judges typically have, which is your right, but has no bearing on what people are actually allowed to do, until a court case rules in your favor.
You've got it backwards, dude. The law says that copying copyrighted material without authorization is illegal, period. It then lists exceptions to this prohibition. The copyright law defaults to prohibiting copying, not allowing it. Until a judge says that a certain act which would otherwise be infringing is non-infringing, that act is against the law, and you can and should be punished for it.
Do you want TiVo put out of business by a costly lawsuit? Do you want mandatory encryption on your TiVo? If so, then by all means keep pushing the envelope. For myself, I will continue to stay within the bounds of the law, and hope that others do the same, so we can continue to go about our business without government interference.
Remember, it's the quacking duck that gets shot.
If you can point me to a case where uses of the kind we're talking about are found infringing, I'd love to see it.
It doesn't work like that. If you can point me to a case where this act (distribution of a home recording) has been found non-infringing, I'd love to see it.
This goes directly to your claim that "It's the fact that the exchange was unauthorized that makes it illegal". The Supreme Court in this case disagreed with you:
You're trying to use quotes from MCA v. Sony to refute quotes from the Napster case, and taking them out of context at that. You should know better than that.
The high court ruled in the Betamax case that home recording is non-infringing, in largest part, specifically because the act occurs entirely within the home. Distributing home recordings nullifies the strongest justification for a finding of fair use in that case. So while a device that merely facilitates (non-infringing) home recordings was found to be legal, a device that facilitates (infringing) distribution of home recordings would most certainly not be found to be legal. A TiVo with program-sharing facilities is more akin to a Napster than it is to a Betamax, so Napster is the case we should look to for precedent.
This case was specifically concerned with timeshifting, but the same issues seem to apply to sharing with one's siblings.
That's the dumbest leap of logic I've heard... well, today, anyway. The issues in MCA v. Sony most definitely do not apply to a hypothetical case involving distribution of home recordings.
Well, a fine point perhaps but couldn't we make this same argument WRT IE4 vs. NS?
I'm not quite sure I see your point here. I think that Netscape failed because they never released a 5.0 browser. (Well, they did, but they called it Mozilla, it was four years late, and it sucked.) I don't think, realistically, Microsoft killed Netscape through abuse of their monopoly. But I think if Netscape had had a strong product, it might have been a different story.
What Microsoft did when they bundled IE 5 was basically shooting a corpse. If Netscape hadn't already been dead, Microsoft would have killed it, but as it is... whether the bundling was illegal or not is a very tough question to answer.
I quoted someone else's use of the term, but "distributing" doesn't really apply if the only person to whom you're giving copies to is your sister.
According to which law? "Yeah, trafficking in stolen merchandise is illegal, but it doesn't really count if the only person to whom you're giving the merchandise to is your sister." "Yeah, conspiracy to commit fraud is illegal, but it doesn't really count if the only person with whom you're conspiring is your sister."
Nope. Doesn't work.
Where do you get that from? It's nowhere near as cut and dried as that.
Read MCA v. Sony, and the Audio Home Recording Act that codified the home recording exemption.
One of the reasons the Napster case was interesting was that in the end, one of the major issues that made Napster's operation "illegal" was that they profited commercially from people's exchanging of music.
No. Napster was facilitating the illegal distribution of copyrighted materials. Unlike the VCR, in Sony v. MCA, there is no non-trivial legitimate use for a technology like Napster, so there were facilitating a crime, plain and simple. The profit aspect of it-- which didn't even come up until quite a while after Napster's genesis-- never applied.
I recall the judge saying (although perhaps not in the final judgement) that there had to be a line somewhere between the fair use sharing of copies, and the sharing on a mass scale being done by Napster. Implied in this was that fair use sharing on a minor scale, without profit involved, is legal.
First of all, judicial opinions do not imply. They state, and that which they do not state is not to be inferred. Okay? Judge Patel wrote in his district court opinion that the prima facie case for direct infringement had been established by the fact that "virtually all Napster users" engaged in the unauthorized exchange of copyrighted works. It's the fact that the exchange was unauthorized that makes it illegal; the idea that a little sharing between friends and family is okay is incorrect. Furthermore, the finding that nearly all Napster users were using the system for illegal purposes meant that Napster was a direct contributor to the infringement.
"For the reasons set forth below, the court find that any potential non-infringing use of the Napster service is minimal or connected to the infringing of the activity, or both. The substantial or commercially significant use of the service was, and continues to be, the unauthorized downloading and uploading of popular music, most of which is copyrighted."
Judge Patel goes on to explain why downloading music for personal use is still a commercial use-- because you're getting something for free that you would normally have to pay for, you're gaining a commercial advantage even though you're not selling the music you download. That's one of a long list of reasons why unauthorized copying of copyrighted materials-- for friends, or family, or whatever-- is not fair use.
I don't believe there's any way, under ordinary copyright law, that giving recordings of a TV show to your sister could be construed as illegal.
It's the part where it says only the copyright holder has the authority to make copies. Pretty cut-and-dried, really. Fair use is an extremely limited exemption-- read 17 USC 107 for details-- and does not apply to the distribution of complete and unmodified copies of works to any person, for any reason.
Given that, if my sister asks me to timeshift shows for her, and no money is involved, I believe I can do that without even technically violating copyright law.
It's legal to timeshift for your own purposes. There is no legal protection for "timeshifting by proxy." However, if a prior arrangement existed between you and your sister that you would record Oprah on her behalf because she would be unable to do so herself, and you then turned over the original recording (not a copy, but the original) to her at a later date, that would almost certainly be non-infringing.
But making copies to give to friends or family is not legal.
Unfortunately, there seems to be widespread ignorance of quite how favorable regular copyright law is to the ordinary citizen.
Unfortunately, there also seems to be a widely held opinion that "fair use" means whatever the hell a person says it means in a given context, and that's not remotely true. All the information a person needs to make a critical judgment is out there, freely available to all. Why people don't take ten minutes to read the statute is beyond me.
So because vendor A is willing to give their product away for free, similar products from other vendors are not subject to scarcity? That's quite a leap.
Software is a commodity like any other: if someone else has it and you don't, you have to conduct a transaction to get it. Some vendors will be willing to give you their wares for free, but that doesn't change the facts that (1) most won't, and (2) the basic rules of economic scarcity still apply.
Besides, with Open Office, you definitely get what you pay for.;-)
At least with a floppy, at any given time one knew what the current capacity of a floppy was.
Sure, it was 400 KB. Oh, wait, I mean 800 KB. No, wait, it was 720 KB. Or was it 1.44 MB? Or 2.88 MB?
The capacity of a floppy was even more a variable than the capacity of a DVD. And yet we all standardized, for purposes of conversation, on the 1.44 MB high-density floppy disc. Just like we've all standardized, for purposes of conversation, on the single-layer, single-sided DVD-5, with a capacity of 4.7 GB. If recorders that can write dual-layer DVD-9's ever become widely available, we'll revise the collective opinion of a DVD's capacity to be 8.5 GB.
Surely scarcity is not an inherent property of bits? After all, bits are infinitely replicable at zero cost!
"Dear Microsoft, because bits are infinitely replicable at zero cost, please send my copy of Microsoft Office, free of charge, to this address. Sincerely, po8."
Let me know how that works out.;-)
Instead, bits are scarce (in the Western world) because people with guns enforce that scarcity. The people with guns "should" go away.
Yeah, I'm sure that's gonna go over real well with Microsoft, too. If you should happen to develop any interest in participating in the real world at any point in the future, do let us know, okay?
Data has a very different set of properties than the physical systems used to store and transfer it.
Data has one very important property that it shares with physical systems and all other things: scarcity. If you don't have it, then you're going to have to barter with somebody to get it. Legally, the only person who can give it to you is the owner, and the owner gets to name the terms of the deal.
The only thing that matters here is scarcity. Because all economic objects share the property of scarcity, they are and should continue to be treated the same way. Whether you are "happy about this" or not.
When I pay money at a store for a software package, the deal is I give them money and they give me a software package.
Right. That's the deal between Muleboy and Best Buy. The deal between Microsoft is different; it's defined by the license agreement inside the box, but outside of the media itself. That's why those out clauses exist; to give you the option of simply returning the software before you've broken the seal on the media.
In other words, you are admitting there are hidden conditions that are not exposed at the time of sale.
"Hidden conditions?" No. As I said, the software license agreement is packaged with the media, but separately from it. You are strongly encouraged by the big "READ THIS FIRST" label to read the agreement before opening the media. The agreement is not hidden in any way.
Isn't that exactly what these software licenses do?
Of course not. The piece of paper spells it all out in black-and-white, right there in front of you. That paper is enclosed in the box, and you should read it before opening the media package. Nobody's trying to trap you, here. Don't be paranoid.
Legally speaking, the changing hands of money is the "deal": I now own the software I just gave $100 dollars for, and there were no conditions attached at the time of sale.
That's not true at all. What you bought was the box, the documentation if any, and the media. The vendor has not yet given you the right to use the software. That right is not intrinsic or automatic, no matter how much you might wish it were; it is conditional, dependent on your acceptance of the SLA. If you don't accept the SLA, you don't get the right to use the software.
If it makes you feel better, think of it in terms of the GPL. If you don't accept the GPL, then you don't get the right to distribute copies of any software licensed under it. Same thing exactly.
Also, I wonder how many stores will really honor this "contract" option to return the software?
Every store will; they're required to by their reseller contracts. Just as the master distributor (Ingram Micro or whomever) is required by their contracts with the vendor to accept returns of software that is still sealed in its media envelope or shrinkwrapped jewel case or whatever. All you have to do is explain that the box has been opened but that the software media itself has not.
I can do everything I want to do with a computer without agreeing to any conditions at all.
Except use things like the iTunes device plug-in SDK. Or iTunes itself, for that matter. Or any such software.
You stick to whatever principles float your boat, friend. The rest of us will go on about our business, if that's all right with you.
Yet you seem to be saying that I have entered into a contract.
You have not yet entered into the contract. You have not yet used the software. The software will be enclosed in an envelope, or sealed in some way, with a big sticker on it that says, "Before you use this software, make sure you read the license agreement!" The license agreement, of course, being enclosed in the box with the sealed software.
It seems to be the norm in the case of Windows software to display a software license as part of the installation process as well. (Since Mac software doesn't have installers for the most part, this doesn't apply as much in Mac land.)
Even if you fail to read either or both of these documents, then you're still going to be held responsible for your end of the deal. The software licenses I'm familiar with all include some kind of out clause; namely that if you don't want to uphold your end of the deal you're free to return the software to the retailer for a refund, or something like that. So nobody's tricking you into anything, here. The terms are presented to you, and it's your responsibility to read them.
No, absolutely not. Cite me a precedent anywhere that includes the distribution of home recordings under the banner of "fair use." You won't find one.
Home recording is considered fair use specifically because it occurs exclusively within the home. Once you pass home recordings outside the home and exchange them with others, you're no longer in the realm of fair use. You're breaking the law.
The DMCA is not involved here. All of this stuff is covered under original copyright law.
If you don't buy the quality argument, then you must never have owned a Mac. Go to the nearest Apple store and take a look at one. Get one of the employees to open it up, take a look at the insides. Feel it, examine the way it's put together. No flimsy plastic parts. Macs are made of magnesium, polycarbonate, titanium, or aircraft-grade aluminium. They're well-designed, well-built machines.
Feel a Mac's keyboard. Again, no cheap plastic parts. They're built to last. Take a look at an Apple-branded monitor. There is no brighter, sharper, more color-accurate LCD anywhere. Hell, even the mouse is an amazing work of engineering.
Here's just one example. Let me tell you how my Power Mac G4 is hooked up. The mouse is plugged into the keyboard (USB). The keyboard is plugged into the monitor (also USB). The monitor is plugged into the computer (ADC). The computer is plugged into the wall (power). That's it. There are no more cables. The monitor draws power from the computer over the ADC cable, so there's no need for a separate power plug. ADC also carries USB, so there's no need to run a long USB cable down to the floor for the keyboard and/or mouse. And both the monitor and the keyboard have two USB ports on them each, so when the need arises I can plug my digital camera or whatever directly into my keyboard, no muss or fuss.
This is some extremely well-thought-out stuff.
Then there's the thing about the OS, and how the Cocoa API's are the most powerful and yet easy-to-use API's for any operating system anywhere. But that's a whole other discussion entirely.
People who think Macs are really no different from PC's have never looked very closely at them.
Bet you think you're insightful, huh? Thinking that you can't do transactions with intangible things. It's not like that argument is old or trite or anything.
Digital music is just as much "stuff" as a book is. With digital music you have the data-- the pattern of audio samples-- and then you have the physical representation of that data, being magnetic or optical patterns on a disc or whatever. With a book you have the contents themselves-- the pattern of words-- and then you have the physical representation of the contents, being ink on paper.
Do we buy and sell books based not on the value of the ink and paper but the contents? Yes, we do. So are books "stuff?" Yes, they are. So is digital music, or software, or anything else that can be represented by bits. As you said, "Get used to it."
Should it be legal to have Quicken pop up a screen after using it for a year that says "by continuing to use this software, you agree to pay Quicken an additional $100"? How is this different than saying: "now that you have purchased this software and taken it home, you can only use it if you agree to these conditions"?
Easy. If the contract says up front that you can use the software without specifying a time limit, then it's not okay for Intuit to ask you for another $100 after the first year. But if the contract says up front that you're buying the right to use the program for a year, then it's perfectly okay for them to ask for more money.
The moral of the story, as always: when you buy software, like many other things, you're entering into a contract. Read the contract before entering into it. If you don't like it, the correct course of action is not to participate. The correct course of action is not to participate for a while and then break the contract when you get the urge.
I'm sorry, but I don't see how creating an object gives you a natural right to dictate what can be done with said object.
Blah blah, philosophy, blah blah. It's really very simple, dude. If you say to me, "I want a copy of your whozit," and I say to you, "Okay, but I'll only give you one if you pay me ten shekels and promise never, ever to use it on a Tuesday," and then you say "Okay" and you give me the ten shekels and make the promise, you're obligated. You've entered into a contract. And if you then decide to be a jerk and break the terms of the contract-- using the whozit on a Tuesday, like I asked you not to-- then I have every right to do whatever stuff we agreed I could do when we made the original contract. Including, but not limited to, retracting your permission to use the whozit.
This is true because you agreed to it. It's not necessary to fall back on talk of "natural rights" and "fascism." It's a simple deal, no more complex than the deals that people have been making between each other since the dawn of civilization.
What I want to know is this: what makes you think you have the right to bust a deal?
There's one thing preventing Apple from taking over the world: price. Apple's products are better than everybody else's, but they're also more expensive, which means people who care more about price than quality (because they're financially constrained or because they're just dumb) won't buy them.
It is a market economy, after all, not a meritocracy.
Until the DMCA and other unbalanced legislation, copyright has never dictated how you can *use* a product that you have legally acquired, and I fail to see any reason why it should.
You're confused. This has nothing to do with copyright, except to the extent that the creator of a work has the exclusive right to distribute that work. In this case, Apple is exercising their exclusive right to distribute the iTunes device plug-in SDK by doing so only under terms. If you agree to the terms, Apple will give you (at no charge, even!) a copy of the SDK. However, you have to agree in advance that you will only do certain things with it. If you don't agree, then you can't have the SDK. And those terms constitute a contract; if you later decide not to abide by the terms (like these guys did), then you are in material breach of contract.
The copyright aspect of this situation begins and ends with Apple's exclusive right to distribute the SDK. What's really relevant here is the contract between the guy who created iCommune and Apple, and the extent to which the guy is in breach of it.
The lesson, of course, is that you shouldn't enter into a contract unless you're both willing and able to abide by its terms completely.
I'm free to do whatever I want with my stuff, which I have legally obtained.
If you had legally obtained the right to build a file-trading plug-in for iTunes, then you could have built one. Since these guys legally obtained the right to build a device plug-in for iTunes, then building a file-trading plug-in is against the rules.
The important point, of course, is that something that you merely have limitied rights to use does not qualify as "my stuff."
So because O'Reilly published "Unix in a Nutshell" they have a right to prevent me from writing in the margins of the copy I bought?
If that was part of the deal, then yes. A vendor has the right to ask for any terms they want, as long as they ask for them up-front. If you agree to the terms, then you're obligated to abide by them. If you don't abide by them, then you are in the wrong. Whining that it was unfair for the vendor to ask them of you in the first place won't get you anywhere with anybody.
If Microsoft made the best software in the world and sold excellent hardware, they wouldn't need to use unfair business practices* to build their monopoly. It would happen the way Adobe's has, or the way Avid's has, or the way MultiGen's has. Naturally.
* As if business practices are ever "fair." Playing fair isn't a business plan; it's a going-out-of-business plan.
Even if they used their position as a monopoly to crush competition?
Depends. If competitors failed because they couldn't compete, then yeah, that's fine. Paint Shop Pro isn't exactly taking off next to Photoshop. But if the monopoly company break the law, then they should be sanctioned.
There are no "good" monopolies
Please read more closely. I said that those companies that dominate their markets because their products are so good are benevolent monopolies. And there are tons of those.
It sounds like you're missing a fundamental point here. Monopolies are not illegal. They are not inherently evil. There are some activities that are illegal for a monopoly to carry out, and those activities are described in the antitrust laws. But simply gaining, or even maintaining, a monopoly is neither illegal nor wrong.
If what you say is true, then you may have a badly misconfigured router.
Rendezvous does two things. First, it sends UDP packets to a multicast address (if I recall, it's 224.0.0.251). No router should pass those packets. Second, it sets the TTL of the packets to 255. Any not-fundamenally-broken router that does happen to pass the multicast packets via misconfiguration should decrement the TTL. Because Rendezvous clients ignore any packet with a TTL other than 255, "leaked" packets should be ignored.
So it's possible that your setup is badly broken in a way that just happens to let Rendezvous packets through with their TTL's intact.
On the other hand, you said you've set up a machine "to act as a bridge." If that's literally true-- if your machine is bridging, not routing-- then Rendezvous should work. A bridge just connects two networks at the MAC layer, so broadcast and multicast traffic is forwarded transparently.
So either your router(s) is(are) really fucked up, or you don't have any routers at all. Either way, Rendezvous doesn't work across (non-fucked-up) routers.
No. Rendezvous works at a lower layer, so you couldn't tunnel it at the TCP layer. You'd have to find a way to tunnel it at the MAC layer, using L2TP or some such.
Rendezvous works by sending UDP packets to 224.0.0.251 with a TTL of 255. No router ever made, configured for tunnelling or otherwise, will pass those packets, and even it did through misconfiguration or some such the TTL would be decremented, so the clients on the destination segment would simply ignore them.
I have a real problem with license agreements that come with software.
Then don't use software that comes with license agreements. Seems like a simple solution to me.
The same goes for hardware.
Then, once again, don't use hardware that comes with license agreements.
Of course, if you want to get your hands on good software, or good hardware, then I suppose you're going to have to accept the terms under which the vendors want to sell it. They created it, after all, so they get to decide how, or even if, they want to distribute it.
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It is up to every citizen to interpret the law as best he can, to guide his own actions, since ignorance is no excuse.
We're not talking about some legal grey area here. The law is very clear, and it has been repeatedly upheld by the appellate courts. The unauthorized distribution of copies of copyrighted works is not lawful.
And the exceptions are deliberately vague and broad, for activities which fall outside the commercial realm
You need to read the statues again. The exemptions are exceptionally narrow, not vague or broad.
The quotes I gave are all generic quotes related to the interpretation of copyright law and the fair use exemption.
That's a falsehood. The issues dealt with in the Betamax case are most definitely not generic. They are very, very specific. Please quit misrepresenting the facts, okay?
You're basically telling me "don't stick your neck out, comrade."
I'm telling you that you're an idiot if you think that what you're talking about it really not against the law. It is, and if you do it, you deserve to be punished for it. I just hope that that punishment doesn't end up affecting us all. I'd hate to lose a privilege that I enjoy exercising just because some idiot who thinks he understands the law decided to use it for illegal purposes.
Your interpretation of the case as being about the activity being "entirely within the home" seems naive.
It's not my interpretation, friend. It comes straight out the decision of the district court. You'll find the phrase "entirely within the home" in the text of the decision; Justice Stevens later cited this point in the decision for the high court.
The fact that recording with a VCR takes place entirely within the home is key to finding that the practice is noncommercial. If you start handing out tapes, it moves from the realm of the noncommercial into the realm of the commercial, and can no longer be considered fair use by the standard outlined in the statute. Judge Patel's opinion in the Napster case reinforces this interpretation; the fact that somebody is getting something which they would otherwise not have had (a copy of a copyrighted work) makes it a commercial transaction, even if no money is changing hands.
In particular, the use would need to cause "nonminimal harm" to the copyright holder's commercial interests.
Easy to prove. How many TV shows have been rereleased on DVD? Home recording itself does nonminimal harm; I'm sure it only stands because of the precedent of the Betamax case. The distribution of home recordings is not, and cannot be interpreted to be, lawful because it would, if allowed, have a significant financial impact on the copyright holders.
The whole point is that the DMCA gives copyright holders an alternate way to legally control their content, where copyright doesn't give them the control they want.
If somebody goes to the trouble of wrapping an access control mechanism around their content, it should be illegal for somebody to come along behind them and circumvent that mechanism. If you put a lock on your door, it's illegal for someone to come into your house, isn't it? Same issue.
You're trying to make this out to be about control. That's obfuscation. The DMCA is, in fact, about giving legal protection to the rights of copyright holders.
We have fair use rights, we just can't always exercise them.
More typical liberal-speak. There's no such thing as "fair use rights." The idea is a fiction. You have no right to make fair use of copyrighted works. What the statute says is simply that fair use, when it occurs, is non-infringing. But if a copyright holder wants to prevent you from making fair use of his works-- by contract, or by the imposition of an access control mechanism, or what have you-- that is his right. The DMCA merely gives legal recognition to that right.
Even the fact that it involves a family member would likely be a consideration in an assessment of fair use.
Are you a judge? If not, then it's not up to you to interpret the law. The law says that the distribution of home recordings without authorization is not allowed. It doesn't say "except to family members." It doesn't say "except when nobody gets hurt." It doesn't say "except" at all. Home recording is allowed; distribution of home recordings to third parties is not.
If you want to bring a case before an appellate court to get this interpretation of yours tested, be my guest. I think the odds are better than fair that you'll be found wrong by the judge.
Part of the reason big copyright owners wanted the DMCA is that it allows them to sidestep all this greyness and make it black and white: "you circumvented my protection, you're in violation of the law". It was never that simple with the copyright act.
The anti-circumvention remedies in the DMCA have nothing to do with copyright infringement. This is a common misconception. The anti-circumvention remedies make it unlawful for a person to circumvent a system of access control. This is orthogonal to the question of authorization to copy. One can copy encrypted media with the encryption intact and be guilty of copyright violation without being guilty of unlawful circumvention. One can decrypt encrypted media without copying it and be guilty of unlawful circumvention without being guilty of copyright infringement. The two have nothing to do with each other.
I have read that, and more. I think that you're simply interpreting fair use more narrowly than judges typically have, which is your right, but has no bearing on what people are actually allowed to do, until a court case rules in your favor.
You've got it backwards, dude. The law says that copying copyrighted material without authorization is illegal, period. It then lists exceptions to this prohibition. The copyright law defaults to prohibiting copying, not allowing it. Until a judge says that a certain act which would otherwise be infringing is non-infringing, that act is against the law, and you can and should be punished for it.
Do you want TiVo put out of business by a costly lawsuit? Do you want mandatory encryption on your TiVo? If so, then by all means keep pushing the envelope. For myself, I will continue to stay within the bounds of the law, and hope that others do the same, so we can continue to go about our business without government interference.
Remember, it's the quacking duck that gets shot.
If you can point me to a case where uses of the kind we're talking about are found infringing, I'd love to see it.
It doesn't work like that. If you can point me to a case where this act (distribution of a home recording) has been found non-infringing, I'd love to see it.
This goes directly to your claim that "It's the fact that the exchange was unauthorized that makes it illegal". The Supreme Court in this case disagreed with you:
You're trying to use quotes from MCA v. Sony to refute quotes from the Napster case, and taking them out of context at that. You should know better than that.
The high court ruled in the Betamax case that home recording is non-infringing, in largest part, specifically because the act occurs entirely within the home. Distributing home recordings nullifies the strongest justification for a finding of fair use in that case. So while a device that merely facilitates (non-infringing) home recordings was found to be legal, a device that facilitates (infringing) distribution of home recordings would most certainly not be found to be legal. A TiVo with program-sharing facilities is more akin to a Napster than it is to a Betamax, so Napster is the case we should look to for precedent.
This case was specifically concerned with timeshifting, but the same issues seem to apply to sharing with one's siblings.
That's the dumbest leap of logic I've heard... well, today, anyway. The issues in MCA v. Sony most definitely do not apply to a hypothetical case involving distribution of home recordings.
Well, a fine point perhaps but couldn't we make this same argument WRT IE4 vs. NS?
I'm not quite sure I see your point here. I think that Netscape failed because they never released a 5.0 browser. (Well, they did, but they called it Mozilla, it was four years late, and it sucked.) I don't think, realistically, Microsoft killed Netscape through abuse of their monopoly. But I think if Netscape had had a strong product, it might have been a different story.
What Microsoft did when they bundled IE 5 was basically shooting a corpse. If Netscape hadn't already been dead, Microsoft would have killed it, but as it is... whether the bundling was illegal or not is a very tough question to answer.
I quoted someone else's use of the term, but "distributing" doesn't really apply if the only person to whom you're giving copies to is your sister.
According to which law? "Yeah, trafficking in stolen merchandise is illegal, but it doesn't really count if the only person to whom you're giving the merchandise to is your sister." "Yeah, conspiracy to commit fraud is illegal, but it doesn't really count if the only person with whom you're conspiring is your sister."
Nope. Doesn't work.
Where do you get that from? It's nowhere near as cut and dried as that.
Read MCA v. Sony, and the Audio Home Recording Act that codified the home recording exemption.
One of the reasons the Napster case was interesting was that in the end, one of the major issues that made Napster's operation "illegal" was that they profited commercially from people's exchanging of music.
No. Napster was facilitating the illegal distribution of copyrighted materials. Unlike the VCR, in Sony v. MCA, there is no non-trivial legitimate use for a technology like Napster, so there were facilitating a crime, plain and simple. The profit aspect of it-- which didn't even come up until quite a while after Napster's genesis-- never applied.
I recall the judge saying (although perhaps not in the final judgement) that there had to be a line somewhere between the fair use sharing of copies, and the sharing on a mass scale being done by Napster. Implied in this was that fair use sharing on a minor scale, without profit involved, is legal.
First of all, judicial opinions do not imply. They state, and that which they do not state is not to be inferred. Okay? Judge Patel wrote in his district court opinion that the prima facie case for direct infringement had been established by the fact that "virtually all Napster users" engaged in the unauthorized exchange of copyrighted works. It's the fact that the exchange was unauthorized that makes it illegal; the idea that a little sharing between friends and family is okay is incorrect. Furthermore, the finding that nearly all Napster users were using the system for illegal purposes meant that Napster was a direct contributor to the infringement.
"For the reasons set forth below, the court find that any potential non-infringing use of the Napster service is minimal or connected to the infringing of the activity, or both. The substantial or commercially significant use of the service was, and continues to be, the unauthorized downloading and uploading of popular music, most of which is copyrighted."
Judge Patel goes on to explain why downloading music for personal use is still a commercial use-- because you're getting something for free that you would normally have to pay for, you're gaining a commercial advantage even though you're not selling the music you download. That's one of a long list of reasons why unauthorized copying of copyrighted materials-- for friends, or family, or whatever-- is not fair use.
I don't believe there's any way, under ordinary copyright law, that giving recordings of a TV show to your sister could be construed as illegal.
It's the part where it says only the copyright holder has the authority to make copies. Pretty cut-and-dried, really. Fair use is an extremely limited exemption-- read 17 USC 107 for details-- and does not apply to the distribution of complete and unmodified copies of works to any person, for any reason.
Given that, if my sister asks me to timeshift shows for her, and no money is involved, I believe I can do that without even technically violating copyright law.
It's legal to timeshift for your own purposes. There is no legal protection for "timeshifting by proxy." However, if a prior arrangement existed between you and your sister that you would record Oprah on her behalf because she would be unable to do so herself, and you then turned over the original recording (not a copy, but the original) to her at a later date, that would almost certainly be non-infringing.
But making copies to give to friends or family is not legal.
Unfortunately, there seems to be widespread ignorance of quite how favorable regular copyright law is to the ordinary citizen.
Unfortunately, there also seems to be a widely held opinion that "fair use" means whatever the hell a person says it means in a given context, and that's not remotely true. All the information a person needs to make a critical judgment is out there, freely available to all. Why people don't take ten minutes to read the statute is beyond me.
So because vendor A is willing to give their product away for free, similar products from other vendors are not subject to scarcity? That's quite a leap.
;-)
Software is a commodity like any other: if someone else has it and you don't, you have to conduct a transaction to get it. Some vendors will be willing to give you their wares for free, but that doesn't change the facts that (1) most won't, and (2) the basic rules of economic scarcity still apply.
Besides, with Open Office, you definitely get what you pay for.
At least with a floppy, at any given time one knew what the current capacity of a floppy was.
Sure, it was 400 KB. Oh, wait, I mean 800 KB. No, wait, it was 720 KB. Or was it 1.44 MB? Or 2.88 MB?
The capacity of a floppy was even more a variable than the capacity of a DVD. And yet we all standardized, for purposes of conversation, on the 1.44 MB high-density floppy disc. Just like we've all standardized, for purposes of conversation, on the single-layer, single-sided DVD-5, with a capacity of 4.7 GB. If recorders that can write dual-layer DVD-9's ever become widely available, we'll revise the collective opinion of a DVD's capacity to be 8.5 GB.
Surely scarcity is not an inherent property of bits? After all, bits are infinitely replicable at zero cost!
;-)
"Dear Microsoft, because bits are infinitely replicable at zero cost, please send my copy of Microsoft Office, free of charge, to this address. Sincerely, po8."
Let me know how that works out.
Instead, bits are scarce (in the Western world) because people with guns enforce that scarcity. The people with guns "should" go away.
Yeah, I'm sure that's gonna go over real well with Microsoft, too. If you should happen to develop any interest in participating in the real world at any point in the future, do let us know, okay?
Data has a very different set of properties than the physical systems used to store and transfer it.
Data has one very important property that it shares with physical systems and all other things: scarcity. If you don't have it, then you're going to have to barter with somebody to get it. Legally, the only person who can give it to you is the owner, and the owner gets to name the terms of the deal.
The only thing that matters here is scarcity. Because all economic objects share the property of scarcity, they are and should continue to be treated the same way. Whether you are "happy about this" or not.
When I pay money at a store for a software package, the deal is I give them money and they give me a software package.
Right. That's the deal between Muleboy and Best Buy. The deal between Microsoft is different; it's defined by the license agreement inside the box, but outside of the media itself. That's why those out clauses exist; to give you the option of simply returning the software before you've broken the seal on the media.
In other words, you are admitting there are hidden conditions that are not exposed at the time of sale.
"Hidden conditions?" No. As I said, the software license agreement is packaged with the media, but separately from it. You are strongly encouraged by the big "READ THIS FIRST" label to read the agreement before opening the media. The agreement is not hidden in any way.
Isn't that exactly what these software licenses do?
Of course not. The piece of paper spells it all out in black-and-white, right there in front of you. That paper is enclosed in the box, and you should read it before opening the media package. Nobody's trying to trap you, here. Don't be paranoid.
Legally speaking, the changing hands of money is the "deal": I now own the software I just gave $100 dollars for, and there were no conditions attached at the time of sale.
That's not true at all. What you bought was the box, the documentation if any, and the media. The vendor has not yet given you the right to use the software. That right is not intrinsic or automatic, no matter how much you might wish it were; it is conditional, dependent on your acceptance of the SLA. If you don't accept the SLA, you don't get the right to use the software.
If it makes you feel better, think of it in terms of the GPL. If you don't accept the GPL, then you don't get the right to distribute copies of any software licensed under it. Same thing exactly.
Also, I wonder how many stores will really honor this "contract" option to return the software?
Every store will; they're required to by their reseller contracts. Just as the master distributor (Ingram Micro or whomever) is required by their contracts with the vendor to accept returns of software that is still sealed in its media envelope or shrinkwrapped jewel case or whatever. All you have to do is explain that the box has been opened but that the software media itself has not.
I can do everything I want to do with a computer without agreeing to any conditions at all.
Except use things like the iTunes device plug-in SDK. Or iTunes itself, for that matter. Or any such software.
You stick to whatever principles float your boat, friend. The rest of us will go on about our business, if that's all right with you.
Yet you seem to be saying that I have entered into a contract.
You have not yet entered into the contract. You have not yet used the software. The software will be enclosed in an envelope, or sealed in some way, with a big sticker on it that says, "Before you use this software, make sure you read the license agreement!" The license agreement, of course, being enclosed in the box with the sealed software.
It seems to be the norm in the case of Windows software to display a software license as part of the installation process as well. (Since Mac software doesn't have installers for the most part, this doesn't apply as much in Mac land.)
Even if you fail to read either or both of these documents, then you're still going to be held responsible for your end of the deal. The software licenses I'm familiar with all include some kind of out clause; namely that if you don't want to uphold your end of the deal you're free to return the software to the retailer for a refund, or something like that. So nobody's tricking you into anything, here. The terms are presented to you, and it's your responsibility to read them.
Distributing copies to sister = fair use.
No, absolutely not. Cite me a precedent anywhere that includes the distribution of home recordings under the banner of "fair use." You won't find one.
Home recording is considered fair use specifically because it occurs exclusively within the home. Once you pass home recordings outside the home and exchange them with others, you're no longer in the realm of fair use. You're breaking the law.
The DMCA is not involved here. All of this stuff is covered under original copyright law.
If you don't buy the quality argument, then you must never have owned a Mac. Go to the nearest Apple store and take a look at one. Get one of the employees to open it up, take a look at the insides. Feel it, examine the way it's put together. No flimsy plastic parts. Macs are made of magnesium, polycarbonate, titanium, or aircraft-grade aluminium. They're well-designed, well-built machines.
Feel a Mac's keyboard. Again, no cheap plastic parts. They're built to last. Take a look at an Apple-branded monitor. There is no brighter, sharper, more color-accurate LCD anywhere. Hell, even the mouse is an amazing work of engineering.
Here's just one example. Let me tell you how my Power Mac G4 is hooked up. The mouse is plugged into the keyboard (USB). The keyboard is plugged into the monitor (also USB). The monitor is plugged into the computer (ADC). The computer is plugged into the wall (power). That's it. There are no more cables. The monitor draws power from the computer over the ADC cable, so there's no need for a separate power plug. ADC also carries USB, so there's no need to run a long USB cable down to the floor for the keyboard and/or mouse. And both the monitor and the keyboard have two USB ports on them each, so when the need arises I can plug my digital camera or whatever directly into my keyboard, no muss or fuss.
This is some extremely well-thought-out stuff.
Then there's the thing about the OS, and how the Cocoa API's are the most powerful and yet easy-to-use API's for any operating system anywhere. But that's a whole other discussion entirely.
People who think Macs are really no different from PC's have never looked very closely at them.
Speaking as a Mac user, I haven't had a floppy drive in any computer I've either owned or used since 1998. How much have I missed it? None at all.
"Legacy free" is just a new-fangled buzzword for what the rest of us have been doing for four years now.
Stuff? What stuff? There's no stuff here.
Bet you think you're insightful, huh? Thinking that you can't do transactions with intangible things. It's not like that argument is old or trite or anything.
Digital music is just as much "stuff" as a book is. With digital music you have the data-- the pattern of audio samples-- and then you have the physical representation of that data, being magnetic or optical patterns on a disc or whatever. With a book you have the contents themselves-- the pattern of words-- and then you have the physical representation of the contents, being ink on paper.
Do we buy and sell books based not on the value of the ink and paper but the contents? Yes, we do. So are books "stuff?" Yes, they are. So is digital music, or software, or anything else that can be represented by bits. As you said, "Get used to it."
Should it be legal to have Quicken pop up a screen after using it for a year that says "by continuing to use this software, you agree to pay Quicken an additional $100"? How is this different than saying: "now that you have purchased this software and taken it home, you can only use it if you agree to these conditions"?
Easy. If the contract says up front that you can use the software without specifying a time limit, then it's not okay for Intuit to ask you for another $100 after the first year. But if the contract says up front that you're buying the right to use the program for a year, then it's perfectly okay for them to ask for more money.
The moral of the story, as always: when you buy software, like many other things, you're entering into a contract. Read the contract before entering into it. If you don't like it, the correct course of action is not to participate. The correct course of action is not to participate for a while and then break the contract when you get the urge.
I'm sorry, but I don't see how creating an object gives you a natural right to dictate what can be done with said object.
Blah blah, philosophy, blah blah. It's really very simple, dude. If you say to me, "I want a copy of your whozit," and I say to you, "Okay, but I'll only give you one if you pay me ten shekels and promise never, ever to use it on a Tuesday," and then you say "Okay" and you give me the ten shekels and make the promise, you're obligated. You've entered into a contract. And if you then decide to be a jerk and break the terms of the contract-- using the whozit on a Tuesday, like I asked you not to-- then I have every right to do whatever stuff we agreed I could do when we made the original contract. Including, but not limited to, retracting your permission to use the whozit.
This is true because you agreed to it. It's not necessary to fall back on talk of "natural rights" and "fascism." It's a simple deal, no more complex than the deals that people have been making between each other since the dawn of civilization.
What I want to know is this: what makes you think you have the right to bust a deal?
There's one thing preventing Apple from taking over the world: price. Apple's products are better than everybody else's, but they're also more expensive, which means people who care more about price than quality (because they're financially constrained or because they're just dumb) won't buy them.
It is a market economy, after all, not a meritocracy.
Until the DMCA and other unbalanced legislation, copyright has never dictated how you can *use* a product that you have legally acquired, and I fail to see any reason why it should.
You're confused. This has nothing to do with copyright, except to the extent that the creator of a work has the exclusive right to distribute that work. In this case, Apple is exercising their exclusive right to distribute the iTunes device plug-in SDK by doing so only under terms. If you agree to the terms, Apple will give you (at no charge, even!) a copy of the SDK. However, you have to agree in advance that you will only do certain things with it. If you don't agree, then you can't have the SDK. And those terms constitute a contract; if you later decide not to abide by the terms (like these guys did), then you are in material breach of contract.
The copyright aspect of this situation begins and ends with Apple's exclusive right to distribute the SDK. What's really relevant here is the contract between the guy who created iCommune and Apple, and the extent to which the guy is in breach of it.
The lesson, of course, is that you shouldn't enter into a contract unless you're both willing and able to abide by its terms completely.
I'm free to do whatever I want with my stuff, which I have legally obtained.
If you had legally obtained the right to build a file-trading plug-in for iTunes, then you could have built one. Since these guys legally obtained the right to build a device plug-in for iTunes, then building a file-trading plug-in is against the rules.
The important point, of course, is that something that you merely have limitied rights to use does not qualify as "my stuff."
So because O'Reilly published "Unix in a Nutshell" they have a right to prevent me from writing in the margins of the copy I bought?
If that was part of the deal, then yes. A vendor has the right to ask for any terms they want, as long as they ask for them up-front. If you agree to the terms, then you're obligated to abide by them. If you don't abide by them, then you are in the wrong. Whining that it was unfair for the vendor to ask them of you in the first place won't get you anywhere with anybody.
If Microsoft made the best software in the world and sold excellent hardware, they wouldn't need to use unfair business practices* to build their monopoly. It would happen the way Adobe's has, or the way Avid's has, or the way MultiGen's has. Naturally.
* As if business practices are ever "fair." Playing fair isn't a business plan; it's a going-out-of-business plan.
Even if they used their position as a monopoly to crush competition?
Depends. If competitors failed because they couldn't compete, then yeah, that's fine. Paint Shop Pro isn't exactly taking off next to Photoshop. But if the monopoly company break the law, then they should be sanctioned.
There are no "good" monopolies
Please read more closely. I said that those companies that dominate their markets because their products are so good are benevolent monopolies. And there are tons of those.
It sounds like you're missing a fundamental point here. Monopolies are not illegal. They are not inherently evil. There are some activities that are illegal for a monopoly to carry out, and those activities are described in the antitrust laws. But simply gaining, or even maintaining, a monopoly is neither illegal nor wrong.
If what you say is true, then you may have a badly misconfigured router.
Rendezvous does two things. First, it sends UDP packets to a multicast address (if I recall, it's 224.0.0.251). No router should pass those packets. Second, it sets the TTL of the packets to 255. Any not-fundamenally-broken router that does happen to pass the multicast packets via misconfiguration should decrement the TTL. Because Rendezvous clients ignore any packet with a TTL other than 255, "leaked" packets should be ignored.
So it's possible that your setup is badly broken in a way that just happens to let Rendezvous packets through with their TTL's intact.
On the other hand, you said you've set up a machine "to act as a bridge." If that's literally true-- if your machine is bridging, not routing-- then Rendezvous should work. A bridge just connects two networks at the MAC layer, so broadcast and multicast traffic is forwarded transparently.
So either your router(s) is(are) really fucked up, or you don't have any routers at all. Either way, Rendezvous doesn't work across (non-fucked-up) routers.
In other words we pay for making those copies and thus it is legal to share them with your friends, at least as a hardcopy.
Not as I understand it. The law allows Canadians to make copies for personal use, but distribution does not qualify as personal use.
It could easily be tunnelled over TCP/IP.
No. Rendezvous works at a lower layer, so you couldn't tunnel it at the TCP layer. You'd have to find a way to tunnel it at the MAC layer, using L2TP or some such.
Rendezvous works by sending UDP packets to 224.0.0.251 with a TTL of 255. No router ever made, configured for tunnelling or otherwise, will pass those packets, and even it did through misconfiguration or some such the TTL would be decremented, so the clients on the destination segment would simply ignore them.
I have a real problem with license agreements that come with software.
Then don't use software that comes with license agreements. Seems like a simple solution to me.
The same goes for hardware.
Then, once again, don't use hardware that comes with license agreements.
Of course, if you want to get your hands on good software, or good hardware, then I suppose you're going to have to accept the terms under which the vendors want to sell it. They created it, after all, so they get to decide how, or even if, they want to distribute it.