"So in this case since the site obviously makes it clear that downloading is allowed"
Yes, this is straightforward.
"but has no further allowances then we should assume that downloading for personal use (not redistribution) is the only> additional right being granted by the implied licence"
This is the difficult part, and exactly what consumes high court judges and attorney as they argue over the facts to decide just what the implied license means. There would need to be some "customs" or "facts" or accepted behaviour that would could be put together to form a view.
"Of course I'm only arguing from the point of view of common sense rather than a knowledge of the applicable legal system, which may diverge hugely."
I'm not really confident which way it would go, but I am confident that it is a hairy problem to solve, and in terms of copyright law there is no "default assumption" that it's "personal use only".
Most laws on copyright (e.g. in the UK the CDPA 1988) have _actual_ statutory provisions that allow reverse engineering for interoperability purposes. Of course, as was seen with IM systems, this rapidly becomes an arms race. Kazaa may have sent a C&D, but my strong belief is that it would not be enforceable.
The question is whether the guy who received it understands his rights or is just going to let himself be brow-beat.
"Of course he has copyright on the expression in a paper (at least until he publishes in a major journal), but the value is in the idea. Why should his algorithm not be protected?"
Because if it has industrial application, it could be protected by patent.
"Why not the work and costs involved in discovery?"
ditto.
"If you follow reasoning, would you not need to give more protection work that was costlier to produce?"
Not entirely, the IPR laws actually restrict the work in accordance with how how socially important the work is. This is why patents last for only 20 years, but copyright for 70 years+.
"The fundamental issue is whether you believe that authors or artists naturally have some rights over a copy that I make with my equipment, or that copyright exists merely as an economic stimulus to creativity. You have not answered this explicitly yet."
Well, if the authors or artists don't have any rights, then simply you are going to make the copies and profit from them, either by enjoyment or monetary worth. Is it fair that you should profit on their hard work?
I don't need to answer anything else. I suggest you go and check out a few books on how IP works (copyright, trademarks, patents, etc) and read them.
Yes, the obvious result of the site's design is that you can download the works and use them, the question is, what is the nature of that use? The site doesn't seem to suggest that you are limited, and from what I can see, there's no strong argument to imply a limitation: is there something that says "these works are for personal use only?"
Read the authors own comments:
"Download away!" "I hope someone finds it enjoyable:)"
"That is, if the design of the site shows that more than just looking is allowed then what else is implied? "
That's a tricky question to answer which is why implied licenses are always nasty.
"I'd guess that downloading for pesonal use is about all you could argue for."
On what basis do you think this? There's no assumption either way, and no facts to suggest either way.
>Also your claim of being "trained in Law[sic]" is about as close as you can get to being worthless 'please believe me' begging.
Sure, if you want to think that way. Personally, I find that training and experience gives someones opinion a little extra initial credibility, even if I may then dismiss what they say.
"What does have bearing on this situation is that Linspire made good on the common corporate practice..."
Well, that's just your opinion, and to prove it you'll need to find documentary evidence suggesting that is what they really did. Good luck!
Otherwise, depending on terms of the license, they are free to use the work without compensation or attribution, just in the same way that a BSD license allows you to do the same thing.
Sure you can make all of these nice allegations, but at the end of the day these are just allegations and that is why a court doesn't care unless you can prove it.
You do have a good point that I thought of after my post: it is categorised as "Wallpaper", so you could argue over what "Wallpaper" means as part of the scope of the implied license, but then there's nothing on the site that limits what you can do with the works, you could argue that "Wallpaper" is just a nice categorisation of the work and doesn't imply that use of the work is restricted to that purpose. For example, some works are categorised as "Screenshots", which definitely refers to the origin of the work, not an intended use.
This is _exactly_ why implied licenses are a nightmare and always best avoided by explicit license and copyright terms.
It's nice of you to "think" that, but that's simply not the case now so has no real bearing on this situation. The courts would not make such a social policy in ruling upon the outcome as they only interpret statutory law. Only the legislature could make such a change by changing the statutory law.
All property rights in modern are "social constructions", whether they are tangible or note: you can easily live in a society that has no notion of property (in fact, research into tribal societies has found this, they actually don't grasp the idea that someone can "own" something: owning "land" is unnatural to them).
Owning land is an intangible right: it's just a bit of paper that says you own it upheld by intangible laws and customs, it's purely economic, there is no "physical attachment" (e.g. you own your leg because it is attached to your body).
You can debate the overall "fundamental" reasoning that underscores the whole idea of copyright system and whether works are protected or not, but fundamental it comes down to a simple question of "artist spends time, effort and cost making a creative work", and in return are you going to give the artist some protection for what he is created, or are you going to allow people to take it and use it as they please ?
"social model" includes economics; there's no way in this limited time and space all the issues cna be fleshed out, but quite simply you fundamentally erred on understanding exactly what coypright protects (it protects expressions, not ideas), so therefore it seems to me that you don't have a full grasp of the facts to entertain an enlightened debate.
When they did get the works, what was the copyright notice?
I look at kde-look.org and there are no explicit copyright notices; yet the purpose of the system is to allow people to download and use backgrounds, suggesting an _implied _license that anyone who puts a background there is making it available for fairly unrestricted use. You like to argue this, but I am trained in Law and this is how it is intepreted. The "hairy" questions are always over "just what are the terms of this implied license", usually the courts have to argue about it.
Note that if you just put an image on your webpage, there is no implied license that you're allowing anyone to use it, so any copying other than the intended purpose of viewing and so on is infringement. However, when you put an image into a system that is _designed_ to allow people to download it, it can be said that you are agreeing to an implied license.
In fact, if you go to the kde-look and choose "Upload", you have to choose a license (GPL, LGPL, "Other", etc) for your work, but when you are a downloader, there is no display of the license. This is a problem that kde-look needs to fix.
It seems to me: (a) the author (Klowner) and kde-look.org have a few issues to sort out regarding the proper clarification and visibibily of copyright licenses for their works; (b) Linspire may be acting within the law, but we need to know more information;
In fact, in this case, kde-look could be liable: because if Klowner did apply the appropiate license on upload, but didn't display it for downloaders, yet Linspire relied in good faith upon an implied license, then in fact, neither Linspire or Klowner did anything wrong: the fault is with kde-look who negligently didn't indicate the proper rights for the work.
You have a fundamental misunderstanding and I suggest you read something about the protection offred by different IP laws.
Copyright does not protect concepts and ideas; so if you discover an efficient algorithm, then someone can extract it from your paper and use it. However, they could not blindly copy your paper.
Your perspective on IP is driven by your view of how societies social model should be. Sure, you can set up a society where there are no property rights and everything is under communal ownership. That's not how current society works, but feel free to convince the world that we should change.
Nice rant, but you don't know what you are talking about.
(a) the Berne Convention does provide for national treatment, but typically the owner of the copyright is the first marketer _in the respective territory_, which means that although the song Russia is technically the same as the copy original provided from the parent company in the US, it is actually (in legal terms) an entirely different one because two separate legal personalities in the US and Russia own the copyright in the respective songs: so the US owner cannot ligitate against someone who copies the Russian version (capice?), nor can the Russian owner litigate against someone who copies the US version. Remember that in the case of copyright infringement, you have to _prove_ an act of copying, and thus a _chain of copies_ leading back to the original version that was infringed.
The Berne Convention does offer a "thirty-day" window in which if you publish in several countries during that period, then the owner of the work _is_ the single owner. This means that if the US owner had also published in Russia within 30 days of the release of the song, then they would own the copyright in the work, and could litigate against the Russian copyists.
(b) Copyright is not outdated: firstly, it costs time, effort and money to make these musical works: so the creators deserve to own rights in those works. This fundamental concept is never going to change. You say "it costs nothing to manufacture" - umm, how do you account for the costs of studios, equipment, people's time and effort, etc ? Sure it costs nothing to make _a copy_ of the first original copy of the work recorded in the studio, but it still costs a lot to make that first copy.
Nice try, but you are obviously not very well aware of the law.
In the UK, under the CDPA 1988, it is _expressly_ not an infringement of copyright to import infringing articles that _are for personal use only_. This means that bringing dodgy CD's back from the far east through customs doesn't get you in trouble (so long as they are not in commercial quantities), and it equally applies to something imported electronically.
If you're a UK resident, there's nothing that can be done until they change the law or stop the site.
The Linux kernel is copyright (with a GPL license).
The licensing mechanism in the module identification is effectively an RMI mechanism, as it provides a global identification as to the nature of the license of the whole kernel.
The DMCA amended copyright act provides RMI as applied to copyright works, which would seem to apply here.
Evading this mechanism is effectively distorting the rights management information, and thus a DMCA infringement.
> It is very unlikely that they would view it as a grant of a GP License to someone who received the code.
Wrong. In the absence of any other clear information this would be read as an indication by the manufacturer that the code is GPL licensed, and someone would rely ion it in good faith.
In fact, this may raise DMCA issues because the manufacturer has evaded the RMI mechanisms in the kernel.
Yes it is a problem, because with an untained kernel you can be sure that the whole kernel is GPL and there are no other licensing issues.
Otherwise, you find 12 months later that you have a problem because there is a submarine license issue as a result of this "tricky" bit of code that you didn't know about.
> For wireless cards, the FCC effectively prohibits it.
To be clear, this is just as much a choice of the manufacturer who decides to put sufficient amount of the driver into software such that the device has to be certified as a "hardware and software" combination, not just "hardware" itself.
I have participated in ETSI conformance testing: when you test the product against a known hardware and software combination, you are _held_ to that known hardware and software combination. If you alter the software (e.g. a new build), you need to recertify.
This is entirely fair IMHO, otherwise a dodgy bug in the new version of the software causes RF splatter and destroys the spectrum.
The issue here for the open source community is to either (a) convince the manufactures to put it all into hardware/firmware so that software is not part of the certification, or (b) separately certify the linux driver with the hardware.
To show wilful infringement, you do need to show "intention"; although we interpret the worst that the '\0' was placed in the string specifically to evade kernel tainting, this may not hold up as "on the balance of probabilities" in a court of law without other evidence to show that it wasn't just a mistake or so on.
It is likely to be a non-cheap time and power cost to rewire the circuit, so it's not really something you'd want to use frequently. There may be other side effects too (e.g. Flash style long-term degredation).
I'm guessing that this will be more useful for things that only frequently have to rewire. For example, mobile phone that can be used in different countries: cycle into GSM, UMTS or other technology, and on each occasion, install entirely new lower-layer software and baseband features using some degree of rewire.
> It protects them from somebody going out and writing an entirely new Operating System and selling it under the name NetBSD.
There are a number of benefits to registration: the team could prevent the use of NetBSD on _any_ distributions unless they authorise (e.g. such as a "NetBSD+custom distribution" would not be able to use the NetBSD mark).
It could be used with customs to prevent import of counterfeit "official" CD's, or even the use of NetBSD on unofficial release CD's.
For example, when a NetBSD release is generated, currently nothing stops anyone from building and releasing their own NetBSD distribution CD from the CVS tag. Now, the owners of the mark will be able to prevent this if they choose to.
I think you are wrong. The provisions only allow interoperable computer programs with other computer programs. It doesn't extend to media or "consumable parts" (which is what the songs would be). Canon KK case in the UK.
"[Fsf-friends] Call the bluff"
on
Update on Playfair
·
· Score: 2, Informative
This posting is irrelevant: the poster quoted some useful parts of the copyright act, but these are not useful in in the case of playfair. The sections quoted apply to computer programs, _not_ to other forms of media. Songs with RMI are not computer programs. I don't think there's any way to argue around this.
Say I didn't want the watch (limited storage...) and just a GPS device that sits in my backpack and does nothing but log data for later use - can someone recommend a good and inexpensive choice? Perhaps something that uses a CF/SM card? Ideally it doesn't even need LCD or any advanced features. I'd like to use it when travelling and recall the data when back home.
Try dshield, I've had my OpenBSD pf firewall generate and submit logs on a daily basis for near a year now. There are a numerous dshield clients and adapter scripts. You will also get daily reports from dshield, there's a tonne of online statistics, and they use your data to submit reports to abuse owners at domain names.
Here's the current statistics: Records Added:
Last Month - 286,455,729
Last Week - 112,352,882
Today - 591,719
Slashdot Mirror
"So in this case since the site obviously makes it clear that downloading is allowed"
Yes, this is straightforward.
"but has no further allowances then we should assume that downloading for personal use (not redistribution) is the only> additional right being granted by the implied licence"
This is the difficult part, and exactly what consumes high court judges and attorney as they argue over the facts to decide just what the implied license means. There would need to be some "customs" or "facts" or accepted behaviour that would could be put together to form a view.
"Of course I'm only arguing from the point of view of common sense rather than a knowledge of the applicable legal system, which may diverge hugely."
I'm not really confident which way it would go, but I am confident that it is a hairy problem to solve, and in terms of copyright law there is no "default assumption" that it's "personal use only".
Most laws on copyright (e.g. in the UK the CDPA 1988) have _actual_ statutory provisions that allow reverse engineering for interoperability purposes. Of course, as was seen with IM systems, this rapidly becomes an arms race. Kazaa may have sent a C&D, but my strong belief is that it would not be enforceable.
The question is whether the guy who received it understands his rights or is just going to let himself be brow-beat.
"Of course he has copyright on the expression in a paper (at least until he publishes in a major journal), but the value is in the idea. Why should his algorithm not be protected?"
Because if it has industrial application, it could be protected by patent.
"Why not the work and costs involved in discovery?"
ditto.
"If you follow reasoning, would you not need to
give more protection work that was costlier to produce?"
Not entirely, the IPR laws actually restrict the work in accordance with how how socially important the work is. This is why patents last for only 20 years, but copyright for 70 years+.
"The fundamental issue is whether you believe that authors or artists naturally have some rights over a copy that I make with my equipment, or that copyright exists merely as an economic stimulus to creativity. You have not answered this explicitly yet."
Well, if the authors or artists don't have any rights, then simply you are going to make the copies and profit from them, either by enjoyment or monetary worth. Is it fair that you should profit on their hard work?
I don't need to answer anything else. I suggest you go and check out a few books on how IP works (copyright, trademarks, patents, etc) and read them.
"that are an obvious result of the site's design"
:)"
Yes, the obvious result of the site's design is that you can download the works and use them, the question is, what is the nature of that use? The site doesn't seem to suggest that you are limited, and from what I can see, there's no strong argument to imply a limitation: is there something that says "these works are for personal use only?"
Read the authors own comments:
"Download away!"
"I hope someone finds it enjoyable
"That is, if the design of the site shows that more than just looking is allowed then what else is implied? "
That's a tricky question to answer which is why implied licenses are always nasty.
"I'd guess that downloading for pesonal use is about all you could argue for."
On what basis do you think this? There's no assumption either way, and no facts to suggest either way.
>Also your claim of being "trained in Law[sic]" is about as close as you can get to being worthless 'please believe me' begging.
Sure, if you want to think that way. Personally, I find that training and experience gives someones opinion a little extra initial credibility, even if I may then dismiss what they say.
> In the absence of an explicit license, you CANNOT assume the right to redistribute the work. You must assume the opposite. It's as basic as that.
Nice try, but your opinion goes against established legal precedent. I suggest you read something about implied licenses.
"What does have bearing on this situation is that Linspire made good on the common corporate practice ..."
Well, that's just your opinion, and to prove it you'll need to find documentary evidence suggesting that is what they really did. Good luck!
Otherwise, depending on terms of the license, they are free to use the work without compensation or attribution, just in the same way that a BSD license allows you to do the same thing.
Sure you can make all of these nice allegations, but at the end of the day these are just allegations and that is why a court doesn't care unless you can prove it.
You do have a good point that I thought of after my post: it is categorised as "Wallpaper", so you could argue over what "Wallpaper" means as part of the scope of the implied license, but then there's nothing on the site that limits what you can do with the works, you could argue that "Wallpaper" is just a nice categorisation of the work and doesn't imply that use of the work is restricted to that purpose. For example, some works are categorised as "Screenshots", which definitely refers to the origin of the work, not an intended use.
This is _exactly_ why implied licenses are a nightmare and always best avoided by explicit license and copyright terms.
It's nice of you to "think" that, but that's simply not the case now so has no real bearing on this situation. The courts would not make such a social policy in ruling upon the outcome as they only interpret statutory law. Only the legislature could make such a change by changing the statutory law.
You don't understand.
All property rights in modern are "social constructions", whether they are tangible or note: you can easily live in a society that has no notion of property (in fact, research into tribal societies has found this, they actually don't grasp the idea that someone can "own" something: owning "land" is unnatural to them).
Owning land is an intangible right: it's just a bit of paper that says you own it upheld by intangible laws and customs, it's purely economic, there is no "physical attachment" (e.g. you own your leg because it is attached to your body).
You can debate the overall "fundamental" reasoning that underscores the whole idea of copyright system and whether works are protected or not, but fundamental it comes down to a simple question of "artist spends time, effort and cost making a creative work", and in return are you going to give the artist some protection for what he is created, or are you going to allow people to take it and use it as they please ?
"social model" includes economics; there's no way in this limited time and space all the issues cna be fleshed out, but quite simply you fundamentally erred on understanding exactly what coypright protects (it protects expressions, not ideas), so therefore it seems to me that you don't have a full grasp of the facts to entertain an enlightened debate.
There are some questions to ask:
Where exactly did Linspire get the works from?
When they did get the works, what was the copyright notice?
I look at kde-look.org and there are no explicit copyright notices; yet the purpose of the system is to allow people to download and use backgrounds, suggesting an _implied _license that anyone who puts a background there is making it available for fairly unrestricted use. You like to argue this, but I am trained in Law and this is how it is intepreted. The "hairy" questions are always over "just what are the terms of this implied license", usually the courts have to argue about it.
Note that if you just put an image on your webpage, there is no implied license that you're allowing anyone to use it, so any copying other than the intended purpose of viewing and so on is infringement. However, when you put an image into a system that is _designed_ to allow people to download it, it can be said that you are agreeing to an implied license.
In fact, if you go to the kde-look and choose "Upload", you have to choose a license (GPL, LGPL, "Other", etc) for your work, but when you are a downloader, there is no display of the license. This is a problem that kde-look needs to fix.
It seems to me:
(a) the author (Klowner) and kde-look.org have a few issues to sort out regarding the proper clarification and visibibily of copyright licenses for their works;
(b) Linspire may be acting within the law, but we need to know more information;
In fact, in this case, kde-look could be liable: because if Klowner did apply the appropiate license on upload, but didn't display it for downloaders, yet Linspire relied in good faith upon an implied license, then in fact, neither Linspire or Klowner did anything wrong: the fault is with kde-look who negligently didn't indicate the proper rights for the work.
You have a fundamental misunderstanding and I suggest you read something about the protection offred by different IP laws.
Copyright does not protect concepts and ideas; so if you discover an efficient algorithm, then someone can extract it from your paper and use it. However, they could not blindly copy your paper.
Your perspective on IP is driven by your view of how societies social model should be. Sure, you can set up a society where there are no property rights and everything is under communal ownership. That's not how current society works, but feel free to convince the world that we should change.
Nice rant, but you don't know what you are talking about.
(a) the Berne Convention does provide for national treatment, but typically the owner of the copyright is the first marketer _in the respective territory_, which means that although the song Russia is technically the same as the copy original provided from the parent company in the US, it is actually (in legal terms) an entirely different one because two separate legal personalities in the US and Russia own the copyright in the respective songs: so the US owner cannot ligitate against someone who copies the Russian version (capice?), nor can the Russian owner litigate against someone who copies the US version. Remember that in the case of copyright infringement, you have to _prove_ an act of copying, and thus a _chain of copies_ leading back to the original version that was infringed.
The Berne Convention does offer a "thirty-day" window in which if you publish in several countries during that period, then the owner of the work _is_ the single owner. This means that if the US owner had also published in Russia within 30 days of the release of the song, then they would own the copyright in the work, and could litigate against the Russian copyists.
(b) Copyright is not outdated: firstly, it costs time, effort and money to make these musical works: so the creators deserve to own rights in those works. This fundamental concept is never going to change. You say "it costs nothing to manufacture" - umm, how do you account for the costs of studios, equipment, people's time and effort, etc ? Sure it costs nothing to make _a copy_ of the first original copy of the work recorded in the studio, but it still costs a lot to make that first copy.
Nice try, but you are obviously not very well aware of the law.
In the UK, under the CDPA 1988, it is _expressly_ not an infringement of copyright to import infringing articles that _are for personal use only_. This means that bringing dodgy CD's back from the far east through customs doesn't get you in trouble (so long as they are not in commercial quantities), and it equally applies to something imported electronically.
If you're a UK resident, there's nothing that can be done until they change the law or stop the site.
You don't understand.
The Linux kernel is copyright (with a GPL license).
The licensing mechanism in the module identification is effectively an RMI mechanism, as it provides a global identification as to the nature of the license of the whole kernel.
The DMCA amended copyright act provides RMI as applied to copyright works, which would seem to apply here.
Evading this mechanism is effectively distorting the rights management information, and thus a DMCA infringement.
> It is very unlikely that they would view it as a grant of a GP License to someone who received the code.
Wrong. In the absence of any other clear information this would be read as an indication by the manufacturer that the code is GPL licensed, and someone would rely ion it in good faith.
In fact, this may raise DMCA issues because the manufacturer has evaded the RMI mechanisms in the kernel.
Yes it is a problem, because with an untained kernel you can be sure that the whole kernel is GPL and there are no other licensing issues. Otherwise, you find 12 months later that you have a problem because there is a submarine license issue as a result of this "tricky" bit of code that you didn't know about.
> For wireless cards, the FCC effectively prohibits it.
To be clear, this is just as much a choice of the manufacturer who decides to put sufficient amount of the driver into software such that the device has to be certified as a "hardware and software" combination, not just "hardware" itself.
I have participated in ETSI conformance testing: when you test the product against a known hardware and software combination, you are _held_ to that known hardware and software combination. If you alter the software (e.g. a new build), you need to recertify.
This is entirely fair IMHO, otherwise a dodgy bug in the new version of the software causes RF splatter and destroys the spectrum.
The issue here for the open source community is to either (a) convince the manufactures to put it all into hardware/firmware so that software is not part of the certification, or (b) separately certify the linux driver with the hardware.
To show wilful infringement, you do need to show "intention"; although we interpret the worst that the '\0' was placed in the string specifically to evade kernel tainting, this may not hold up as "on the balance of probabilities" in a court of law without other evidence to show that it wasn't just a mistake or so on.
It is likely to be a non-cheap time and power cost to rewire the circuit, so it's not really something you'd want to use frequently. There may be other side effects too (e.g. Flash style long-term degredation).
I'm guessing that this will be more useful for things that only frequently have to rewire. For example, mobile phone that can be used in different countries: cycle into GSM, UMTS or other technology, and on each occasion, install entirely new lower-layer software and baseband features using some degree of rewire.
> It protects them from somebody going out and writing an entirely new Operating System and selling it under the name NetBSD.
There are a number of benefits to registration: the team could prevent the use of NetBSD on _any_ distributions unless they authorise (e.g. such as a "NetBSD+custom distribution" would not be able to use the NetBSD mark).
It could be used with customs to prevent import of counterfeit "official" CD's, or even the use of NetBSD on unofficial release CD's.
For example, when a NetBSD release is generated, currently nothing stops anyone from building and releasing their own NetBSD distribution CD from the CVS tag. Now, the owners of the mark will be able to prevent this if they choose to.
I think you are wrong. The provisions only allow interoperable computer programs with other computer programs. It doesn't extend to media or "consumable parts" (which is what the songs would be). Canon KK case in the UK.
This posting is irrelevant: the poster quoted some useful parts of the copyright act, but these are not useful in in the case of playfair. The sections quoted apply to computer programs, _not_ to other forms of media. Songs with RMI are not computer programs. I don't think there's any way to argue around this.
Say I didn't want the watch (limited storage ...) and just a GPS device that sits in my backpack and does nothing but log data for later use - can someone recommend a good and inexpensive choice? Perhaps something that uses a CF/SM card? Ideally it doesn't even need LCD or any advanced features. I'd like to use it when travelling and recall the data when back home.
Try dshield, I've had my OpenBSD pf firewall generate and submit logs on a daily basis for near a year now. There are a numerous dshield clients and adapter scripts. You will also get daily reports from dshield, there's a tonne of online statistics, and they use your data to submit reports to abuse owners at domain names.
Here's the current statistics:
Records Added:
Last Month - 286,455,729
Last Week - 112,352,882
Today - 591,719