Sure US has a freedom of speech. Unless . . . you happen to be a computer programmer communicating in a way that you find most expressive . ..
The Supreme Court and a smattering of lower courts have discussed this issue at length. Yes, source code is protected speech. Yes, it can be copyrighted. Yes, it can also be burdened; you can't yell "Fire!" in a movie theater, you can't engage in commercial speech that directly makes possible illegal activities (beyond 321, think fraud, material misrepresentation under the '33 and '34 Acts, etc., etc), you can't defame someone, in some states you cannot commit "veggie libel," etc., ad naseum. Just because a programmer's code is protected speech doesn't mean it cannot be limited. Have you had any training in Constitutional Law?
Show me where "legally back[ing] up [your] DVD . . . is described in fair use"? Fair use is defined in 17 USC 107 (try actually reading it, before presuming rights which don't exist), which does not discuss backups. The only time a backup copy is mentioned is in 17 USC 117, which is exclusive to computer programs, which the audio-visual / motion picture (see 17 USC 106) portions of a DVD most certainly are not (setting aside the issue of menus and special feature bells and whistles, which may or may not be covered under 17 USC 117). As for the addresses above - why not go directly to the top? Jack_Valenti@mpaa.org should work, based on the format of Pascale's email.
IANAL, but if SCO's really basing their claim(s) on errno.h and the like, I can't imagine how their attorneys justify $9M in fees over the last year. Google 'merger doctrine' and 'scenes a faire' and have fun with the analysis!
"US copyright law grants the enduser the right to make a backup copy of any copyrighted material he owns"
Um, no, it doesn't. Software you *own* (not software that's licensed; guess which one most software is?), under section 117, and private audio copying under the Audio Home Recording Act, are exceptions to the rule. Take another look at 17 USC 106. Reproduction is an exclusive right, still.
Why does everyone assume the [RI|MP]AA doesn't understand technology, just because they're against the use of it to commit copyright infringement / electronic theft? I've read some MPAA analysis (including, about a year ago, an in depth look at BitTorrent), and I've been at conferences with people from MPAA and RIAA antipiracy. Some of those guys are coders, some are ex-network admins. I know a guy who works as a consultant for them; he makes $18K a pop to write up technical briefs regarding emerging P2P networks. He reads/. He wrote a Gnutella client (0.4 protocol) in his spare time, out of boredom, in C, then translated it to Perl. When I have programming questions, I call him.
Think it's safe to say a fair number of the people on "the other side" 'get' the technology/.'ers seem to think is their exclusive purview. Two words: Wake up.
Note that most telesyncs are done using the infrared or mini-jack connected "hearing impaired" audio feeds... In-the-booth camming occurs, but it's a lot more rare than you'd think.
http://www.google.com/search?q=telesync+%22heari ng +impaired%22
Question - did anyone actually bother to read the bill? Quoting:
Every person who operates a recording device in a
motion picture theater while a motion picture is being exhibited, for
the purpose of recording a theatrical motion picture and without the
express written authority of the owner of the motion picture
theater...
This does not cover talking on a camera-equipped cellphone, working on a camera-equipped PDA, or even having a camcorder in your purse. The law only prohibits pointing the camera at the screen while a movie is being shown. It's a very narrowly tailored law that addresses what it seeks to address - piracy.
Speaking of which - take a look at VCDQuality and note the number of movies that show up as "CAM" or "Telesync" first, and then tell me camcording in a movie theater isn't occurring.
Then, skip on over to VCDMovieBox.com and note the movies being offered for sale that are obviously camcords (Master and Commander, Brother Bear, Elf, etc....
The argument can be made that the 'theft' involved is any revenue that would have been made had to purchased the content, rather than downloading it.
At any rate, copyright violation can be prosecuted criminally (at least in the US; I suspect other Berne Convention signatories have similar provisions in place, but I'm no expert in international law - I'm not even an expert in US law;). Take a look at 17 USC 506, for starters.
Yeah, but I know PHP and Perl, and I've got ~ 2 months to fully implement and get working with external providers, so, I'd rather not learn Java at this stage...
I have to implement a set of web services here on (I know, I know, not my choice) MS SQL 2000 Server. I have the option of using ASP (gack), Perl, or PHP, or any combination thereof. At first, probably mostly HTTP GET and POSTs, but eventually we'll implement SOAP.
What books (O'Reilly?), if any, are a 'must have' for this type of work, and these tools? I know my way around PHP reasonably well, Perl at a not-quite-amateur-not-quite-pro level, and ASP / Java not at all. I've got two months, give or take, so I don't want to take the time to get up to speed on a whole new language.
Any first-hand recommendations would be much appreciated; I've got to order books today (found out yesterday)...
Remember, the DMCA (17 USC 1201(a), in this case) only concerns itself with works protected under the copyright act... We got into this discussion the other night in class, when someone suggested that they could simply encrypt an uncopyrightable simple compilation of facts and thus protect it under the DMCA. No; if the data itself isn't copyright(able|ed), simply adding encryption doesn't make it a DMCA violation.
The issue, obviously, becomes thornier when you distribute software (OpenOffice) that can circumvent... But again, the DMCA might not apply here either. It's at least arguable, if the ability to open DRM-protected documents is only incidental; see 17 USC 1201(a)(2).
Finally, I seriously doubt Office 2003 will save documents protected with DRM by default, given the overhead (an available Windows 2003 server to authenticate/authorize) required. Never mind interoperability and backwards compatibility; you couldn't work on such a document on your laptop on a plane, or anywhere you didn't have connectivity and VPN access... No way would the business community put up with that sort of crippling as SOP, even if they wanted to turn it 'on' for certain documents.
I am not (yet?) a lawyer, so this might be the worst idea since New Coke / Microsoft Bob / whatever...
But why don't end users, separately but in something of a concerted effort, start filing lawsuits for declaratory judgments against SCO? The filing fees would be substantially cheaper than the license, and it's better to be a plaintiff than a defendant. I seriously doubt SCO wants to litigate 50 separate suits (one per state; the dollar amount is too low for federal subject matter jurisdiction, so no change of venue)... I wonder (I doubt it) if this could be done in small claims court...
Ripeness shouldn't be a problem, if SCO is filing their own suits. Thinking people with, say, five Linux installs (I have five, in two states, if you count laptops), or whatever subject matter jurisdiction requires for your local superior court ($5000? So, 8 Linux instances at SCO's current $700 demand?). Use their tactics against them, before they get around to using them against you. And, best of all, get some DISCOVERY, and start disproving their bullshit...
Children, even minors, are responsible for their own torts. Even when living at home. Even when in first grade. Read the classic first year first case in torts, Vosberg v. Putney.
Remember who these ads and websites are aimed at. The average/. reader knows the "truth" about back doors in software, and, more than that, knows how to share directories with granularity. The average computer user, I would posit, does not. Don't believe me? Hop on KaZaA, Gnutella, whatever, and do a search for '.xls' or '.wpd,' etc. See how many personal documents you uncover. We did that once and found a CEO's copy of the salary breakdown for his dot-com... No names to protect the clueless (and shareholder value;)). So, it's FUD, but it's (if there is such a thing) justifiable FUD.
No, sorry. Have your wife read the actual cases, not the hornbooks. I'll refer you specifically to the language "[w]e agree that plaintiffs have shown that Napster users infringe at least two of the copyright holders' exclusive rights: the right of production, 106(1); and distribution, 106(3)." A&M Records, Inc., v. Napster, Inc., 239 F.3d 1004 at 1014 (9th Cir., 2001). While the court references the search index, they do so only because the act of uploading a filename to the index constituted reproduction, not because it was only the index that violated "fair use."
It gets better... "Napster users do not engage in fair use of the copyrighted materials." Id., at 1015.
If this is the sort of misinformation "top tier" schools are learnin' their students with, I feel pretty good about my "third tier" school (which was just awarded the only ABA-accredited Entertainment and Media Law LLM in the country).
Indeed, so, using this argument, slaves who escaped to freedom back in the 1800's were not entitled to do so, eh?
Within the context of that system, yes, that's an accurate statement. A hundred years from now, when the mysteries of the brain are mapped out and every criminal that manages to slip through the genetic manipulation at conception is Prozac'd into a harmless, physically unfettered life, we might well ask, "so prisoners who escaped those horrific SHUs were not entitled to do so?"
Within the context of our system now, prisoners are not entitled to be free, once deprived of liberty through due process. In their system then, slaves were not entitled to be free, and if escaped and recaptured would be returned to their bondage.
"You believe that you are special, that somehow the rules do not apply to you. Obviously, you are mistaken."
I've read Locke and the rest of the bunch. Locke says natural rights include Life, Liberty, and Property. "Copyright" wasn't in there as far as I recall.
What would you define copyright as, if not a property right? It's as much a property right as, for instance, riparian interests (and exists along the same vein). See, for instance, Caliga v. Inter Ocean Newspaper Co., 215 U.S. 182 (1909).
But if we're talking about Enlightenment-era philosophy, why not include the Federalist papers?
Because I didn't intend to get into a philosophical "battle of the enlightment-era minds." The original assertion was that copyright wasn't a natural law; an absolute statement. I merely wished to point out that notions of 'natural law' are subjective and based on personal philosophy. In any case, I think we're confusing "natural law" with "fundamental right." The natural law, or universalist, argument, falls along the lines of "no free society would attempt to regulate this behavior." I would posit that this is known to not be true, as only the least-free societies in the world today (China being a classic example) fail to respect copyright protections.
If we proceed with a "fundamental right" analysis, then we start looking at things like...
Express provision - this is present in Article I, Section 8, Clause 8 of the original Constitution.
The Douglas notion of Penumbras / eminations - unnecessary, with express provision (above)
Collective conscience of the people / traditions and customs - copyright law dates back over three hundred years...
And as for the DMCA not depriving you of property... when you consider that upon receipt of a DMCA notification, you must take what "may be" infringing material off of your web site before the case is settled, that can certainly lead to loss of property, if by removing the alleged infringing material your business online is harmed.
You're forgetting the counter-notification provision of the DMCA, 17 USC 512(g)(2) et seq, where the alleged infringing material must be restored if it has been taken offline. There are safeguards built into the process. Also, note that failing to remove the material merely eliminates the safe harbor provisions of 17 USC 512, essentially returning the ISP to the level of liability they would otherwise have had. If the online business is legitimate and the ISP does not take the site down even in the face of a DMCA notification, nothing happens. Remember the title of 17 USC 512: "Limitations on liability relating to material online." This is not some draconian law that hands content owners carte blanche authority nor enables deprivation of property by the State; it does not trigger Due Process concerns. What this section does is:
Shield ISPs from liability for copyright infringement provided they respond to notifications of copyright infringement.
Provide the form and function of that notification.
As a trade-off to the protections afforded the ISPs, it provides an expedited subpoena process such that the content owners can identify and go after the actual infringers more readily, without burdening the courts unduly. Note that "going after" the infringers entails the full court process, including possible motions for dismissal or summary judgment; full discovery; trial by jury pursuant to the 7th Amendment; etc.
Maybe some of my thoughts are "wrong" in the context of current law. But that doesn't mean I don't feel that they should be changed.
Okay. But expect me (and others with, you know, actual facts at our disposal) to call you on claims like you're "legally justified in downloading MP3s of the songs [you] own on CD. .." 1. You may feel you're morally j
1. The max penalty is $150,000 per song. Had you stolen a CD from a store, would you be charged $2,250,000 . ..
Not the same fact pattern. Offering a CD on a P2P network is a lot more analogous to the optical disc labs in Asia that crank out hundreds of copies for sale in the underground markets of Hong Kong, Thailand, New York... One file shared on a P2P network can be downloaded a number of times, and in the eyes of the law, each download is one "sale" (not necessarily of the CD, but perhaps of an online version through Pressplay, or iTunes, or whathaveyou), or unauthorized distribution, for which the holder of the intellectual property rights will not be compensated. Too, the dollar amount is in some ways somewhat punitive; i.e., it's set high to act as a deterrent.
2. The use of the DMCA outrages me. It's a violation of basic constitutional rights, like due process.
The Constitutional Due Process safeguards apply only to State action (5th, Federal, and 14th, State), and are largely applied only to criminal prosecutions. The DMCA applies to civil litigation, civil penalties, etc., and does not fall within the ambit of Due Process; the courts here are not in a position to deprive you of life (as in, say, capital murder cases), liberty (civil litigation will not result in jail time), nor property (awarding damages is not state seizure, but a civil judgment).
They can subpoena you without a court order. They can force an injunction merely by notifying you -- they don't need to prove you guilty of something, merely suppose it. That's damned dangerous.
The subpoena process is not designed to prove guilt or innocence; it's a discovery mechanism, present in every civil litigation that survives Rule 26 motions, etc. It's not a search warrant for which you need a court order. The only difference here vs. regular (non-DMCA) civil litigation is the expedited process. Have you actually read the Verizon decision?
3. There are legitimate uses for P2P. If, indeed, I've performed "copyright infringement," by downloading music, then that means that I've violated a license to listen to that music. That means that buying a CD isn't buying a specially pressed piece of plastic -- it's buying a license to listen to certain music. That means I'm legally justified in downloading MP3s of the songs I own on CD.
Um, in a word, no. The courts disagree and, though you'll probably not like to admit it, the courts a) know more about this than you seem to, and b) are the controlling authority in this country.
4. A democracy is made up of the general will of the populace. MILLIONS of people in the country share files . . .
So get them to vote. Drive a grassroots effort to get the law changed. Support the EFF. Whatever. Just stop whining about it and spouting pseudo-law.
The government should be responding to how people act en masse. Copyright is a civil granted right -- it's not a natural right.
What definition are you using for 'natural right?' Where do those rights spring forth from? How would you define them? Locke, for instance, might have a different view of what's a natural right than you do.../p
Need to check your 'rights'. When you purchase a album/cd/etc you get a license to listen to that particular music, regardess of 'source'.
Care to cite caselaw or statutory support for that notion? Note UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349 (S.D.N.Y. 2000), a case with analogous facts, where this notion of "you get a license to listen to that particular music, regardless of 'source'" wasn't even raised by the defendants. Defendants who, I'll point out, pulled out all the stops and raised every defense imaginable, no matter how implausible, including an estoppel theory argument!
Because that is precisely the intent of legal protection of intellectual property. The idea was to give a temporary monopoly on the distribution of a work in exchange for having encouraged the development of that work.
Even within the original term of copyright (was it 14 or 17 years? don't have it at my fingertips), the vast majority of the music the RIAA is complaining about being swapped would still be protected under the extremely temporary original term. Avril Lavigne, etc. At any rate, the SCt held in Eldred that the current terms, while long, are still indeed temporary. And I daresay that Mr. Lessig has studied the issue a great deal more than most/.'ers, and was unable to convince them otherwise.
Maybe Apple will show them the light. It hasn't yet launched, but Apples solution is already endorsed by the RIAA/MPAA
It is? What are you basing that on? AFAIK the MPAA nor the RIAA has endorsed any solution other than official standards (CCA's CSS, etc). To my knowledge the Content Protection Working Group hasn't weighed in at all...
No idea if those details made it into the courtroom or not
Rest assured, they did. I've read the amicus briefs on this case, and the many declarations. As they're public documents, I can make them available if anyone's interested.
I'm glad at least one judge out there realizes that file sharing is not something that should be illegal!
Have you read the opinion? It's a very narrow read on a very specific fact pattern, and in no way suggests or establishes that "file sharing is not something that should be illegal." Quite to the contrary, it acknoledges that illegal activity was taking place but that under existing case law, these two companies are not liable under existing legal theories of contributory copyright infringment.
Individual users of the software can and will be targetted as directly infringing; this is already happening, and will only getworse.
In what way is it unjust? It's an ancient right, guaranteed by the U.S. Constitution (Article I, Section 8, Clause 8), and established via statute in Title 17 of the United States Code. The RIAA owns the exclusive right; this is a Government-sanctioned monopoly, and has been since the 18th century. See the Constitution and the United States Code.
Slashdot Mirror
Sure US has a freedom of speech. Unless . . . you happen to be a computer programmer communicating in a way that you find most expressive . . .
The Supreme Court and a smattering of lower courts have discussed this issue at length. Yes, source code is protected speech. Yes, it can be copyrighted. Yes, it can also be burdened; you can't yell "Fire!" in a movie theater, you can't engage in commercial speech that directly makes possible illegal activities (beyond 321, think fraud, material misrepresentation under the '33 and '34 Acts, etc., etc), you can't defame someone, in some states you cannot commit "veggie libel," etc., ad naseum. Just because a programmer's code is protected speech doesn't mean it cannot be limited. Have you had any training in Constitutional Law?
Show me where "legally back[ing] up [your] DVD . . . is described in fair use"? Fair use is defined in 17 USC 107 (try actually reading it, before presuming rights which don't exist), which does not discuss backups. The only time a backup copy is mentioned is in 17 USC 117, which is exclusive to computer programs, which the audio-visual / motion picture (see 17 USC 106) portions of a DVD most certainly are not (setting aside the issue of menus and special feature bells and whistles, which may or may not be covered under 17 USC 117). As for the addresses above - why not go directly to the top? Jack_Valenti@mpaa.org should work, based on the format of Pascale's email.
It's not true that copying must be verbatim. Take a look at the Altai test (quick analysis; chessy brief)... Copyright law is actually pretty subtle.
IANAL, but if SCO's really basing their claim(s) on errno.h and the like, I can't imagine how their attorneys justify $9M in fees over the last year. Google 'merger doctrine' and 'scenes a faire' and have fun with the analysis!
"US copyright law grants the enduser the right to make a backup copy of any copyrighted material he owns"
Um, no, it doesn't. Software you *own* (not software that's licensed; guess which one most software is?), under section 117, and private audio copying under the Audio Home Recording Act, are exceptions to the rule. Take another look at 17 USC 106. Reproduction is an exclusive right, still.
Why does everyone assume the [RI|MP]AA doesn't understand technology, just because they're against the use of it to commit copyright infringement / electronic theft? I've read some MPAA analysis (including, about a year ago, an in depth look at BitTorrent), and I've been at conferences with people from MPAA and RIAA antipiracy. Some of those guys are coders, some are ex-network admins. I know a guy who works as a consultant for them; he makes $18K a pop to write up technical briefs regarding emerging P2P networks. He reads /. He wrote a Gnutella client (0.4 protocol) in his spare time, out of boredom, in C, then translated it to Perl. When I have programming questions, I call him.
/.'ers seem to think is their exclusive purview. Two words: Wake up.
Think it's safe to say a fair number of the people on "the other side" 'get' the technology
Note that most telesyncs are done using the infrared or mini-jack connected "hearing impaired" audio feeds... In-the-booth camming occurs, but it's a lot more rare than you'd think.
i ng +impaired%22
http://www.google.com/search?q=telesync+%22hear
Question - did anyone actually bother to read the bill? Quoting:
Every person who operates a recording device in a motion picture theater while a motion picture is being exhibited, for the purpose of recording a theatrical motion picture and without the express written authority of the owner of the motion picture theater...This does not cover talking on a camera-equipped cellphone, working on a camera-equipped PDA, or even having a camcorder in your purse. The law only prohibits pointing the camera at the screen while a movie is being shown. It's a very narrowly tailored law that addresses what it seeks to address - piracy.
Speaking of which - take a look at VCDQuality and note the number of movies that show up as "CAM" or "Telesync" first, and then tell me camcording in a movie theater isn't occurring.
Then, skip on over to VCDMovieBox.com and note the movies being offered for sale that are obviously camcords (Master and Commander, Brother Bear, Elf, etc....
The argument can be made that the 'theft' involved is any revenue that would have been made had to purchased the content, rather than downloading it.
At any rate, copyright violation can be prosecuted criminally (at least in the US; I suspect other Berne Convention signatories have similar provisions in place, but I'm no expert in international law - I'm not even an expert in US law ;). Take a look at 17 USC 506, for starters.
Along with the "No Electronic Theft" (NET) Act. Theft, mind.
Yeah, but I know PHP and Perl, and I've got ~ 2 months to fully implement and get working with external providers, so, I'd rather not learn Java at this stage...
I have to implement a set of web services here on (I know, I know, not my choice) MS SQL 2000 Server. I have the option of using ASP (gack), Perl, or PHP, or any combination thereof. At first, probably mostly HTTP GET and POSTs, but eventually we'll implement SOAP.
What books (O'Reilly?), if any, are a 'must have' for this type of work, and these tools? I know my way around PHP reasonably well, Perl at a not-quite-amateur-not-quite-pro level, and ASP / Java not at all. I've got two months, give or take, so I don't want to take the time to get up to speed on a whole new language.
Any first-hand recommendations would be much appreciated; I've got to order books today (found out yesterday)...
Argh.
THANKS!!!
Remember, the DMCA (17 USC 1201(a), in this case) only concerns itself with works protected under the copyright act... We got into this discussion the other night in class, when someone suggested that they could simply encrypt an uncopyrightable simple compilation of facts and thus protect it under the DMCA. No; if the data itself isn't copyright(able|ed), simply adding encryption doesn't make it a DMCA violation.
The issue, obviously, becomes thornier when you distribute software (OpenOffice) that can circumvent... But again, the DMCA might not apply here either. It's at least arguable, if the ability to open DRM-protected documents is only incidental; see 17 USC 1201(a)(2).
Finally, I seriously doubt Office 2003 will save documents protected with DRM by default, given the overhead (an available Windows 2003 server to authenticate/authorize) required. Never mind interoperability and backwards compatibility; you couldn't work on such a document on your laptop on a plane, or anywhere you didn't have connectivity and VPN access... No way would the business community put up with that sort of crippling as SOP, even if they wanted to turn it 'on' for certain documents.
I am not (yet?) a lawyer, so this might be the worst idea since New Coke / Microsoft Bob / whatever...
But why don't end users, separately but in something of a concerted effort, start filing lawsuits for declaratory judgments against SCO? The filing fees would be substantially cheaper than the license, and it's better to be a plaintiff than a defendant. I seriously doubt SCO wants to litigate 50 separate suits (one per state; the dollar amount is too low for federal subject matter jurisdiction, so no change of venue)... I wonder (I doubt it) if this could be done in small claims court...
Ripeness shouldn't be a problem, if SCO is filing their own suits. Thinking people with, say, five Linux installs (I have five, in two states, if you count laptops), or whatever subject matter jurisdiction requires for your local superior court ($5000? So, 8 Linux instances at SCO's current $700 demand?). Use their tactics against them, before they get around to using them against you. And, best of all, get some DISCOVERY, and start disproving their bullshit...
Children, even minors, are responsible for their own torts. Even when living at home. Even when in first grade. Read the classic first year first case in torts, Vosberg v. Putney.
Remember who these ads and websites are aimed at. The average /. reader knows the "truth" about back doors in software, and, more than that, knows how to share directories with granularity. The average computer user, I would posit, does not. Don't believe me? Hop on KaZaA, Gnutella, whatever, and do a search for '.xls' or '.wpd,' etc. See how many personal documents you uncover. We did that once and found a CEO's copy of the salary breakdown for his dot-com... No names to protect the clueless (and shareholder value ;)). So, it's FUD, but it's (if there is such a thing) justifiable FUD.
No, sorry. Have your wife read the actual cases, not the hornbooks. I'll refer you specifically to the language "[w]e agree that plaintiffs have shown that Napster users infringe at least two of the copyright holders' exclusive rights: the right of production, 106(1); and distribution, 106(3)." A&M Records, Inc., v. Napster, Inc., 239 F.3d 1004 at 1014 (9th Cir., 2001). While the court references the search index, they do so only because the act of uploading a filename to the index constituted reproduction, not because it was only the index that violated "fair use."
It gets better... "Napster users do not engage in fair use of the copyrighted materials." Id., at 1015.
If this is the sort of misinformation "top tier" schools are learnin' their students with, I feel pretty good about my "third tier" school (which was just awarded the only ABA-accredited Entertainment and Media Law LLM in the country).
Indeed, so, using this argument, slaves who escaped to freedom back in the 1800's were not entitled to do so, eh?
Within the context of that system, yes, that's an accurate statement. A hundred years from now, when the mysteries of the brain are mapped out and every criminal that manages to slip through the genetic manipulation at conception is Prozac'd into a harmless, physically unfettered life, we might well ask, "so prisoners who escaped those horrific SHUs were not entitled to do so?"
Within the context of our system now, prisoners are not entitled to be free, once deprived of liberty through due process. In their system then, slaves were not entitled to be free, and if escaped and recaptured would be returned to their bondage.
"You believe that you are special, that somehow the rules do not apply to you. Obviously, you are mistaken."
I've read Locke and the rest of the bunch. Locke says natural rights include Life, Liberty, and Property. "Copyright" wasn't in there as far as I recall.
What would you define copyright as, if not a property right? It's as much a property right as, for instance, riparian interests (and exists along the same vein). See, for instance, Caliga v. Inter Ocean Newspaper Co., 215 U.S. 182 (1909).
But if we're talking about Enlightenment-era philosophy, why not include the Federalist papers?
Because I didn't intend to get into a philosophical "battle of the enlightment-era minds." The original assertion was that copyright wasn't a natural law; an absolute statement. I merely wished to point out that notions of 'natural law' are subjective and based on personal philosophy. In any case, I think we're confusing "natural law" with "fundamental right." The natural law, or universalist, argument, falls along the lines of "no free society would attempt to regulate this behavior." I would posit that this is known to not be true, as only the least-free societies in the world today (China being a classic example) fail to respect copyright protections.
If we proceed with a "fundamental right" analysis, then we start looking at things like...
And as for the DMCA not depriving you of property... when you consider that upon receipt of a DMCA notification, you must take what "may be" infringing material off of your web site before the case is settled, that can certainly lead to loss of property, if by removing the alleged infringing material your business online is harmed.
You're forgetting the counter-notification provision of the DMCA, 17 USC 512(g)(2) et seq, where the alleged infringing material must be restored if it has been taken offline. There are safeguards built into the process. Also, note that failing to remove the material merely eliminates the safe harbor provisions of 17 USC 512, essentially returning the ISP to the level of liability they would otherwise have had. If the online business is legitimate and the ISP does not take the site down even in the face of a DMCA notification, nothing happens. Remember the title of 17 USC 512: "Limitations on liability relating to material online." This is not some draconian law that hands content owners carte blanche authority nor enables deprivation of property by the State; it does not trigger Due Process concerns. What this section does is:
Maybe some of my thoughts are "wrong" in the context of current law. But that doesn't mean I don't feel that they should be changed.
Okay. But expect me (and others with, you know, actual facts at our disposal) to call you on claims like you're "legally justified in downloading MP3s of the songs [you] own on CD. . ." 1. You may feel you're morally j
1. The max penalty is $150,000 per song. Had you stolen a CD from a store, would you be charged $2,250,000 . . .
Not the same fact pattern. Offering a CD on a P2P network is a lot more analogous to the optical disc labs in Asia that crank out hundreds of copies for sale in the underground markets of Hong Kong, Thailand, New York... One file shared on a P2P network can be downloaded a number of times, and in the eyes of the law, each download is one "sale" (not necessarily of the CD, but perhaps of an online version through Pressplay, or iTunes, or whathaveyou), or unauthorized distribution, for which the holder of the intellectual property rights will not be compensated. Too, the dollar amount is in some ways somewhat punitive; i.e., it's set high to act as a deterrent.
2. The use of the DMCA outrages me. It's a violation of basic constitutional rights, like due process.
The Constitutional Due Process safeguards apply only to State action (5th, Federal, and 14th, State), and are largely applied only to criminal prosecutions. The DMCA applies to civil litigation, civil penalties, etc., and does not fall within the ambit of Due Process; the courts here are not in a position to deprive you of life (as in, say, capital murder cases), liberty (civil litigation will not result in jail time), nor property (awarding damages is not state seizure, but a civil judgment).
They can subpoena you without a court order. They can force an injunction merely by notifying you -- they don't need to prove you guilty of something, merely suppose it. That's damned dangerous.
The subpoena process is not designed to prove guilt or innocence; it's a discovery mechanism, present in every civil litigation that survives Rule 26 motions, etc. It's not a search warrant for which you need a court order. The only difference here vs. regular (non-DMCA) civil litigation is the expedited process. Have you actually read the Verizon decision?
3. There are legitimate uses for P2P. If, indeed, I've performed "copyright infringement," by downloading music, then that means that I've violated a license to listen to that music. That means that buying a CD isn't buying a specially pressed piece of plastic -- it's buying a license to listen to certain music. That means I'm legally justified in downloading MP3s of the songs I own on CD.
Um, in a word, no. The courts disagree and, though you'll probably not like to admit it, the courts a) know more about this than you seem to, and b) are the controlling authority in this country.
4. A democracy is made up of the general will of the populace. MILLIONS of people in the country share files . . .
So get them to vote. Drive a grassroots effort to get the law changed. Support the EFF. Whatever. Just stop whining about it and spouting pseudo-law.
The government should be responding to how people act en masse. Copyright is a civil granted right -- it's not a natural right.
What definition are you using for 'natural right?' Where do those rights spring forth from? How would you define them? Locke, for instance, might have a different view of what's a natural right than you do.../p
Need to check your 'rights'. When you purchase a album/cd/etc you get a license to listen to that particular music, regardess of 'source'.
Care to cite caselaw or statutory support for that notion? Note UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349 (S.D.N.Y. 2000), a case with analogous facts, where this notion of "you get a license to listen to that particular music, regardless of 'source'" wasn't even raised by the defendants. Defendants who, I'll point out, pulled out all the stops and raised every defense imaginable, no matter how implausible, including an estoppel theory argument!
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Because that is precisely the intent of legal protection of intellectual property. The idea was to give a temporary monopoly on the distribution of a work in exchange for having encouraged the development of that work.
Even within the original term of copyright (was it 14 or 17 years? don't have it at my fingertips), the vast majority of the music the RIAA is complaining about being swapped would still be protected under the extremely temporary original term. Avril Lavigne, etc. At any rate, the SCt held in Eldred that the current terms, while long, are still indeed temporary. And I daresay that Mr. Lessig has studied the issue a great deal more than most /.'ers, and was unable to convince them otherwise.
Maybe Apple will show them the light. It hasn't yet launched, but Apples solution is already endorsed by the RIAA/MPAA
It is? What are you basing that on? AFAIK the MPAA nor the RIAA has endorsed any solution other than official standards (CCA's CSS, etc). To my knowledge the Content Protection Working Group hasn't weighed in at all...
No idea if those details made it into the courtroom or not
Rest assured, they did. I've read the amicus briefs on this case, and the many declarations. As they're public documents, I can make them available if anyone's interested.
I'm glad at least one judge out there realizes that file sharing is not something that should be illegal!
Have you read the opinion? It's a very narrow read on a very specific fact pattern, and in no way suggests or establishes that "file sharing is not something that should be illegal." Quite to the contrary, it acknoledges that illegal activity was taking place but that under existing case law, these two companies are not liable under existing legal theories of contributory copyright infringment.
Individual users of the software can and will be targetted as directly infringing; this is already happening, and will only get worse.
their unjust monopoly on music distribution
In what way is it unjust? It's an ancient right, guaranteed by the U.S. Constitution (Article I, Section 8, Clause 8), and established via statute in Title 17 of the United States Code. The RIAA owns the exclusive right; this is a Government-sanctioned monopoly, and has been since the 18th century. See the Constitution and the United States Code.