The problem with this whole line of thinking is that we don't know what Dan Borislow's lawyers said to him. We only know what Dan Borislow says about his lawyers.
Trust me, every day good lawyers say to their clients the equivalent of "if things blow up, just blame it your lawyer". They often do this when their clients say "I don't care about the probability of getting what I want, I want to got for it. How can I do damage control?"
That may be true. Or it may not. You haven't supported it with anything other that "I'm in law school". You're pretty much sort of correct but it's much more complicated than that when you actually practice.
Jesus Christ, I've been reading/. since 1999, only made an account in 2004 or something like that because I never had anything to say previously and just randomly decided to sign up, and didn't start commenting on/. again to start defending NYCL, but this is stupid.
The topic of the conversation is RIAA defendants.
What do you think the sentence in question means? I mean, if you want to willfully misconstrue something to make a point, at least make it more subtle. Else you're not going to fool anyone.
PS was it/. or Ars that had the party at the Modern in Boston in around 2000? I can't remember if I was there for the one or the other.
I only know about recent decisions on that issue with respect to the State Farm case, which I think was about punitive damages (I could be wrong but I can't look it up at the moment). If you don't mind, if you see this reply could you please post a reply to this with a link to that UMG decision? I don't currently practice there, but I am admitted in MA and if it's a first circuit decision I would be really interested.
In the first link you provided, the only prediction I see relates to statutory damages. NYCL says that there are facts that could lead a court to find fair use in the context of a p2p environment, but there's no prediction with respect to that. The statement that there are fact patterns such that court could find fair use in a p2p situation is still true.
I can't find a comment by NYCL in the second link. If one is there, can you show me where it is?
NYCL is providing links and updates to potentially important IP cases. He's also "biased" in the sense that he has an opinion, but he wears it on his sleeve so I'm not sure where your anger comes from. If you want to be angry you can also say "the court probably won't care about the amicus briefs", or "the court won't care about the scholarship", or "linking to an 'Ed. Note: the law and scholarship agree' comment is lazy and lame and unpersuasive', but, although all of that would be true in a sense, this is/. and not a law weblog.
99% of the people here have an opinion on the outcome they want and will criticize the courts if that outcome is not reached no matter what is a reasonable interpretation of the law and precedent./. is a machine that gets fed and, at least with respect to law, is not a place you're going to fund much honest discourse on the current state of IP law. What you will find is discourse on how IP law should be changed -- but those arguments are, no matter what they pretend to be, about statutory changes rather than informed arguments regarding textual analysis of actual law and precedent.
NYCL is feeding information to the machine with his own opinion injected in the summary. He has the advantage of having an educated opinion, whether or not he's correct about the eventual outcome in any particular case. That's like 10 jillion times better than people will ever see reading Cory Doctorow. So I'm happy he exists and posts here.
(IAAL, and I am an IP lawyer)
Ok, I've got some news for you. The quotation is not meant like an immutable law. There's a really good, important point there, but it's still just a meaningful aphorism. Let me help you with this -- when you see "given enough eyeballs, all bugs are shallow", read it as "given enough eyeballs, [almost all] bugs are shallow".
Does that help? Can we move on now? This discussion is so stupid it's almost painful.
Here are some other things to know: MS blog author wants attention; ESR is a self-important moron.
Thank me later.
The lawyer was making those objections because that's how these things work, for better or worse. In these situations, lawyers attend depositions assigned specifically to object to anything remotely objectionable in order to preserve their objections in the future (because otherwise they are lost). If something really damaging happened in one of the answers to an objected question, those lawyers could then bring up the fact that they objected at the time and wouldn't be hosed by failure to preserve the issue. In many cases it's just wasting time, but in the event something goes ill in your deposition, you'll thank your lawyers for so protecting you.
I've heard our strategy described as spreading peanut butter across the myriad opportunities that continue to evolve in the online world. The result: a thin layer of investment spread across everything we do and thus we focus on nothing in particular.
By the analogy he adopts, peanut butter is investment. What bothers him is the nature of the layer of peanut butter : it's too thin. So the problem is with the peanut butter allocation, not the peanut butter. And in fact, his favored projects should get more peanut butter given his chosen metaphor, since peanut butter == investment.
Which makes this, I hate peanut butter. We all should, a mind-blowingly asinine comment. This guy doesn't even understand his own analogy and maybe Yahoo! would be wise to re-allocate the investment it made in him. Sounds like he wouldn't mind that at all.
This is what happens when people make comments they think are snappy and incisive without actually thinking about what the hell they're saying.
I'm not sure precisely what choice you'd call proper, but if you lament the DVD unavailability of the Star Wars trilogy as originally released, from September through December such a product will be available here.
Pure contributory negligence would means that one who harms another cannot be found liable for negligence if the harmed party was in any way negligent himself. i.e. it's not "quite likely" the hospital or its vendors will be tapping liability insurance on a theory of contributory negligence, because that's not how contributory negeligence works.
To pick a favorite of slashdot, consider the movie blade runner which most people mistakenly believe is an updated "do androids dream of electric sheep". In fact its the merger with a second Philip K Dick book, "the man in the high castle". The plot is from "electric sheep" but the society is from "high castle"
Just curious, do you have a source for this or is that your interpretation? The interesting thing about the society in High Castle was that it flowed from the idea that the other guys had won WWII. A street marketplace with asian stuff doesn't evoke that to me, and even if I were to agree about the filming conjuring a sense of hustling and hanging on I don't think that points uniquely or compellingly to High Castle either.
Anyway, I agree that Sci-Fi is enfeebled as a genre when people reduce it to, or require of it, visions of the future, and I'm not trying to start a/. bitch-fight.. I'm really just wondering if you would elaborate on why you see the society in High Castle portrayed in BR.
the legal theory is right in the us code
on
Ballmer on Linux
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· Score: 2, Informative
If you wanted to, the "legal theory" one would invoke for suing a customer using an infringing software product would be straight up title 35, part iii, sec. 271(a) which reads : "Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent."
That's not to say that users would be sued more often than those making and/or offering to sell, just that users certainly could find themselves sued as well. Which is to say there _is_ a legal theory there.
I agree that the issue is more subtle than it's being treated by blogs, but I think your capsule summary of Campbell v. Acuff Rose, stating "the band didn't make a song making fun of Roy Orbison; they made a song making fun of a pretty woman," is an overstatement. Quoting from the Supreme's decision :
For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works. See, e.g., Fisher v. Dees, supra, at 437; MCA, Inc. v. Wilson, 677 F.2d 180, 185 (CA2 1981). If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger...
The threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived....
While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew's song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. It is this joinder of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have had a [ CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994) ,,14] claim to fair use protection as transformative works.
That said, it looks like before the EFF realized that the underlying song was itself a copy, it was relying on a multi-level parody defense like you articulate. I'd really like to quote it here but the EFF's web server seems to be borked. It's either here or easily findable from there, I forget offhand.
A First Amendment defense is compelling. I wouldn't be surprised though if the EFF could win on just the four factors of section 107:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
(1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3)the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4)the effect of the use upon the potential market for or value of the copyrighted work.
poster didn't rtfa, how excellent
on
SimChurch
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· Score: 1
This experiment is launched by a Christian website, Ship of Fools, and will be named Church of Fools. Even with such a foolish name, the virtual church project has been approved by the church hierarchy.
From the article:
Although an unofficial move, the virtual church may well receive approval in the church hierarchy. The Archbishop of Canterbury, Dr Rowan Williams, has called for the church to become more "mission-shaped" by adopting new forms of worship, which could include new ventures such as "café churches".
I don't know why MSFT and Sun chose the settlement payment scheme as they did, but one explanation could be that since apparently Microsoft is trying to extinguish as much of its litigation as possible not taking an equity stake was the safer bet. Taking an equity stake in Sun would draw criticism in the form of "Now Microsoft owns ANOTHER big player in the market!" and the anti-trust types (and Europe) would get suspicious, the slashdot theorizing even more wild, etc.... Even if its equity stake were in non-voting shares people would still look askance at the deal.
Seems to me making the payments as part of a settlement agreement and simply disengaging might have been the more sensible option from a pragmatic point of view.
Because they're acting in their own self interest, which is not necessarily a bad thing.
The way to fix the issue of patients not having this data, if one thinks it's an issue that needs to be fixed, is to gather enough support to grab the ear of the legislatures with a voice louder than that of the doctors in opposition to such a measure.
I guess what I'm saying is that pointing out that doctors are acting in their own self interest is not an argument that this database is a bad thing but rather serves to raise the issue that perhaps patients should know more about their docs before they submit to important things like surgery.
Whether it's a good or bad attempt, the doctors are trying to solve the problem of frivolous lawsuits and skyrocketing malpractice insurance. Opening up physician disciplinary stuff speaks to giving patents more information regarding the doctor in whom they are entrusting their lives, which isn't what the doctors are trying to fix. Which is just to say that I think you're legitimately pointing out what may be a systemic information inequality but not a flaw with what those docs in Texas are doing.. although there may certainly be flaws with it.
It was found out that nearly 100% of Napster's traffic was illegal, because once they actually blocked the illegal stuff there wasn't much if any traffic left.
I think it's beyond dispute that most of Napster's traffic was in the realm of copyright violation within the meaning of current copyright law, but the above statement relies on the assumption that the intervening technology "blocked the illegal stuff" ignoring the not-illegal stuff it may have also blocked.
One major concern with these interference technologies is that they will block files (in this case music) which are not illegal and thus hose "legitimate" uses of p2p technology, of which there really are a ton. Which is to say, even though Napster traded in primarily (c) violating content that doesn't also mean that the filtering tech put in place wan't also massively over-inclusive in what it filtered, and if it was, well, that just really sucks.
I don't understand how the first paragraph of parent reponds in a meaningful way to the grandparent and I think the Harrisongs reference is particularly misleading.
The Harrisongs example is one in which parts of the melodies were ridiculously similar (which is not to say the case was rightly or wrongly decided or that coming up with those similarities w/o "subconscious copying" is necessarily an oddity) and is instructive but is basically an outlier. I mean, how many songs created today don't generate from musical influences? Thus, the semantics of the sentence "If you write your own song, record it, and distribute it, then you owe a royalty to the songwriter('s publisher) whose song you subconsciously copied" frame the issue as much more inclusive and scary than in the real world. The fact is although many musicians are vigilant about copyright issues, if you write and record a song you honestly believe is new you don't live in a state of fear that someone's going to sue you for unconscious infringement. If that were the case the costs of creating music would be astronomically high.
In my case, I'm a law student and I play guitar. If I pick up my guitar, call some friends to play drums and bass, and we hack out a song, I'm really not all that concerned about subscious infringement assuming we're trying to write an original song and we're honest about that.
In sum, assuming a reasonable interpretation of the grand-parent's intentions as quoted in the parent refer to the creation of music they reasonably regard as new, although there is the *possibility* of subconscious copying liability, if the subconscious copying common law were as in effect as parent-poster's language suggests, there'd be even more rich lawyers than there are now and a lot less music. In reality, however, we have a lot of new music being made (although not embraced by the big record companies)... go look at lulu.com, for instance. And those honest musicians who think they're creating new music aren't living in fear of a "subconscious infringement" action as defined by the Southern District of New York (and perhaps endorsed by other courts as well, beats me).
Almost every sentence in above should contain IMHO... I don't mean to be expounding received wisdom and truth, just offering my opinion. I omitted all the IMHOs so as not to clutter the prose but they are all intended to be implied.
Slashdot Mirror
Trust me, every day good lawyers say to their clients the equivalent of "if things blow up, just blame it your lawyer". They often do this when their clients say "I don't care about the probability of getting what I want, I want to got for it. How can I do damage control?"
That may be true. Or it may not. You haven't supported it with anything other that "I'm in law school". You're pretty much sort of correct but it's much more complicated than that when you actually practice.
The topic of the conversation is RIAA defendants.
What do you think the sentence in question means? I mean, if you want to willfully misconstrue something to make a point, at least make it more subtle. Else you're not going to fool anyone.
PS was it /. or Ars that had the party at the Modern in Boston in around 2000? I can't remember if I was there for the one or the other.
(I'm traveling and my powers are severely limited)
He didn't say XOR.
I only know about recent decisions on that issue with respect to the State Farm case, which I think was about punitive damages (I could be wrong but I can't look it up at the moment). If you don't mind, if you see this reply could you please post a reply to this with a link to that UMG decision? I don't currently practice there, but I am admitted in MA and if it's a first circuit decision I would be really interested.
In the first link you provided, the only prediction I see relates to statutory damages. NYCL says that there are facts that could lead a court to find fair use in the context of a p2p environment, but there's no prediction with respect to that. The statement that there are fact patterns such that court could find fair use in a p2p situation is still true.
I can't find a comment by NYCL in the second link. If one is there, can you show me where it is?
NYCL is providing links and updates to potentially important IP cases. He's also "biased" in the sense that he has an opinion, but he wears it on his sleeve so I'm not sure where your anger comes from. If you want to be angry you can also say "the court probably won't care about the amicus briefs", or "the court won't care about the scholarship", or "linking to an 'Ed. Note: the law and scholarship agree' comment is lazy and lame and unpersuasive', but, although all of that would be true in a sense, this is /. and not a law weblog.
99% of the people here have an opinion on the outcome they want and will criticize the courts if that outcome is not reached no matter what is a reasonable interpretation of the law and precedent. /. is a machine that gets fed and, at least with respect to law, is not a place you're going to fund much honest discourse on the current state of IP law. What you will find is discourse on how IP law should be changed -- but those arguments are, no matter what they pretend to be, about statutory changes rather than informed arguments regarding textual analysis of actual law and precedent.
NYCL is feeding information to the machine with his own opinion injected in the summary. He has the advantage of having an educated opinion, whether or not he's correct about the eventual outcome in any particular case. That's like 10 jillion times better than people will ever see reading Cory Doctorow. So I'm happy he exists and posts here. (IAAL, and I am an IP lawyer)
Ok, I've got some news for you. The quotation is not meant like an immutable law. There's a really good, important point there, but it's still just a meaningful aphorism. Let me help you with this -- when you see "given enough eyeballs, all bugs are shallow", read it as "given enough eyeballs, [almost all] bugs are shallow". Does that help? Can we move on now? This discussion is so stupid it's almost painful. Here are some other things to know: MS blog author wants attention; ESR is a self-important moron. Thank me later.
hey now, I didn't say it didn't exist. I just quoted the movie.
It's a UNIX system! I know this!
The lawyer was making those objections because that's how these things work, for better or worse. In these situations, lawyers attend depositions assigned specifically to object to anything remotely objectionable in order to preserve their objections in the future (because otherwise they are lost). If something really damaging happened in one of the answers to an objected question, those lawyers could then bring up the fact that they objected at the time and wouldn't be hosed by failure to preserve the issue. In many cases it's just wasting time, but in the event something goes ill in your deposition, you'll thank your lawyers for so protecting you.
By the analogy he adopts, peanut butter is investment. What bothers him is the nature of the layer of peanut butter : it's too thin. So the problem is with the peanut butter allocation, not the peanut butter. And in fact, his favored projects should get more peanut butter given his chosen metaphor, since peanut butter == investment.
Which makes this, I hate peanut butter. We all should, a mind-blowingly asinine comment. This guy doesn't even understand his own analogy and maybe Yahoo! would be wise to re-allocate the investment it made in him. Sounds like he wouldn't mind that at all.
This is what happens when people make comments they think are snappy and incisive without actually thinking about what the hell they're saying.
I'm not sure precisely what choice you'd call proper, but if you lament the DVD unavailability of the Star Wars trilogy as originally released, from September through December such a product will be available here.
Pure contributory negligence would means that one who harms another cannot be found liable for negligence if the harmed party was in any way negligent himself. i.e. it's not "quite likely" the hospital or its vendors will be tapping liability insurance on a theory of contributory negligence, because that's not how contributory negeligence works.
Quite a good writeup of stack buffer overflows can be found here.
Just curious, do you have a source for this or is that your interpretation? The interesting thing about the society in High Castle was that it flowed from the idea that the other guys had won WWII. A street marketplace with asian stuff doesn't evoke that to me, and even if I were to agree about the filming conjuring a sense of hustling and hanging on I don't think that points uniquely or compellingly to High Castle either.
Anyway, I agree that Sci-Fi is enfeebled as a genre when people reduce it to, or require of it, visions of the future, and I'm not trying to start a /. bitch-fight .. I'm really just wondering if you would elaborate on why you see the society in High Castle portrayed in BR.
That's not to say that users would be sued more often than those making and/or offering to sell, just that users certainly could find themselves sued as well. Which is to say there _is_ a legal theory there.
That said, it looks like before the EFF realized that the underlying song was itself a copy, it was relying on a multi-level parody defense like you articulate. I'd really like to quote it here but the EFF's web server seems to be borked. It's either here or easily findable from there, I forget offhand.
A First Amendment defense is compelling. I wouldn't be surprised though if the EFF could win on just the four factors of section 107:
But IANAL.
Interested people can read the decision here.
From the article: Although an unofficial move, the virtual church may well receive approval in the church hierarchy. The Archbishop of Canterbury, Dr Rowan Williams, has called for the church to become more "mission-shaped" by adopting new forms of worship, which could include new ventures such as "café churches".
Seems to me making the payments as part of a settlement agreement and simply disengaging might have been the more sensible option from a pragmatic point of view.
That said, I don't actually know.
um, Lessig is already on the EFF Board.
Because they're acting in their own self interest, which is not necessarily a bad thing. The way to fix the issue of patients not having this data, if one thinks it's an issue that needs to be fixed, is to gather enough support to grab the ear of the legislatures with a voice louder than that of the doctors in opposition to such a measure. I guess what I'm saying is that pointing out that doctors are acting in their own self interest is not an argument that this database is a bad thing but rather serves to raise the issue that perhaps patients should know more about their docs before they submit to important things like surgery. Whether it's a good or bad attempt, the doctors are trying to solve the problem of frivolous lawsuits and skyrocketing malpractice insurance. Opening up physician disciplinary stuff speaks to giving patents more information regarding the doctor in whom they are entrusting their lives, which isn't what the doctors are trying to fix. Which is just to say that I think you're legitimately pointing out what may be a systemic information inequality but not a flaw with what those docs in Texas are doing .. although there may certainly be flaws with it.
I think it's beyond dispute that most of Napster's traffic was in the realm of copyright violation within the meaning of current copyright law, but the above statement relies on the assumption that the intervening technology "blocked the illegal stuff" ignoring the not-illegal stuff it may have also blocked.
One major concern with these interference technologies is that they will block files (in this case music) which are not illegal and thus hose "legitimate" uses of p2p technology, of which there really are a ton. Which is to say, even though Napster traded in primarily (c) violating content that doesn't also mean that the filtering tech put in place wan't also massively over-inclusive in what it filtered, and if it was, well, that just really sucks.
The Harrisongs example is one in which parts of the melodies were ridiculously similar (which is not to say the case was rightly or wrongly decided or that coming up with those similarities w/o "subconscious copying" is necessarily an oddity) and is instructive but is basically an outlier. I mean, how many songs created today don't generate from musical influences? Thus, the semantics of the sentence "If you write your own song, record it, and distribute it, then you owe a royalty to the songwriter('s publisher) whose song you subconsciously copied" frame the issue as much more inclusive and scary than in the real world. The fact is although many musicians are vigilant about copyright issues, if you write and record a song you honestly believe is new you don't live in a state of fear that someone's going to sue you for unconscious infringement. If that were the case the costs of creating music would be astronomically high.
In my case, I'm a law student and I play guitar. If I pick up my guitar, call some friends to play drums and bass, and we hack out a song, I'm really not all that concerned about subscious infringement assuming we're trying to write an original song and we're honest about that.
In sum, assuming a reasonable interpretation of the grand-parent's intentions as quoted in the parent refer to the creation of music they reasonably regard as new, although there is the *possibility* of subconscious copying liability, if the subconscious copying common law were as in effect as parent-poster's language suggests, there'd be even more rich lawyers than there are now and a lot less music. In reality, however, we have a lot of new music being made (although not embraced by the big record companies) ... go look at lulu.com, for instance. And those honest musicians who think they're creating new music aren't living in fear of a "subconscious infringement" action as defined by the Southern District of New York (and perhaps endorsed by other courts as well, beats me).
Almost every sentence in above should contain IMHO ... I don't mean to be expounding received wisdom and truth, just offering my opinion. I omitted all the IMHOs so as not to clutter the prose but they are all intended to be implied.