If you're anywhere near New England and like classic arcade games, check out Fun Spot in New Hampshire. When I worked in Boston I used to go up there once a year with friends just to revel in old school arcade.
http://www.funspotnh.com/
Is on display here:
In the case of Eldred v. Ashcroft, decided earlier this year, the United States Supreme Court gave clear and unequivocal support to Congress's authority to legislate in the copyright arena. The European Union remains firmly in support of intellectual property laws, as embodied generally in the Berne Convention.
There was no debate that Congress had authority to legislate in the Copyright arena. We had a 1909 Copyright alteration and another one in 1976 by Congress. McBride is trying to create an issue where there simply is none whatsoever.
Second, McBride's reliance on Eldred is misguided at best and (giving him intellectual credit he probably doesn't deserve) otherwise subersively misguided. Eldred was about extension of copyright terms retroacvitely (eg mickey mouse). "Profit" in the Mickey Mouse context is different than copyright and its use in the GPL context. It is obvious that the profusion of open source code incentivizes like-minded coders to promote the progress of science and the useful arts. Behold the Linux kernel, apache, samba, and all readers' other favorite free software/open source advances in our culture. This is both profitable for our culture and profitable for, eg (and devastatingly for MdBride's case) Red Hat and IBM. In short, McBride is an idiot.
The other obvious point, tied to the above comment, is that McBride completely fails to recognize the diffence between free as in beer and free as in speech. IBM hasn't missed this and IBM is profitable. Which is more than one can say for SCO.
SCO (and Boies, Schiller, Flexner)'s position is profoundly retarded and disingenuous. They should be spanked hard and often and until bleeding.
This statement:
Red Hat has aggressively lobbied Congress to eliminate software patents and copyrights. (see http://www.redhat.com/legal/patent_policy.html ).
is dumb, wrong, and ignorant.
Red Hat and its lawyers *must* understand that the GPL gets all, as in 100%, of its power by copyright. Copyright gives you no authority to reproduce, distribute, or make derivative works of copyrighted code. The GPL relaxes those burdens. Without copyright it doesn't matter if there's a GPL statement on code you come across because the US isn't going to enforce rights in that code. It is copyright, for all its flaws and warts, that provides the fundamental power of the GPL.
Red Hat would be insane to argue against copyrightabilty of code because of this. And they don't
Second, and importantly, the GPL is therefore a *grant* of rights to the receiver of copyrighted code. Since in the U.S. code is subject to copyright which restricts, basically, everything, the GPL relieves some of those restrictions while imposing other requirements. the GPL is therefore generous, and abundantly so, in the face of U.S. copyright requirements. This is why the GPL will not be struck down and the very idea of its being so is fundamentally, frankly, dumb.
McBride is proving himself an idiot and his lawyers at Boies, Schiller, Flexner and embarrassing themselves ever more as each day passes.
These discoveries are all great for the side of what is good and right, but unless I am mistaken (which I have been plenty of times in the past...), all this looks devastatingly bad but is only necessarily so if, when SCO reveals specifically, as in line by line, what code it's formally claiming to have a beef with.
Which is to say, couldn't they conceivably claim issues with JCS, NUMA, RCU, and SMP code that's simply separate from what their boy Hellig was working near?
I realize that either way their argument is crap but it, if they are going to pull something like that, it's crap that they can still, albeit insultingly, disingenuously, and vexatiously, hold onto their claims and simply fail to admit what obvious liars they are?
This is true, but it depends what fatwallet is doing (I don't know). If FatWallet is posting the ads wholesale, then those ads are protected by a weak form of copyright. This is analagous to the Feist language that discusses how mere name/address/phone # displays NO creativity and is just the only way to do it as opposed to a rendering with some minimum of creativity.
If FatWallet is extracting the sale information and repeating it, then there's no genuine issue and it's not a copyright problem. If they're reposting the ads wholesale then they will probably be protected by "thin" copyright and the court will analyze it under Feist for a minimum of creativity (and public good, and fair use.. since the lawyers will bring up all those issues)....
Either way, what FatWallet is doing should be legal. (again, I don't know exactly what they're doing, but if they're either extracting the facts and reposting them or copying the (what i presume to be simple coupon) ads I still think, for what it's worth (absolutely nothing), that it should be OK.
And irrespective of all that, the DMCA provisions for subpoena are obnoxious and wrong.
I'm for open source voting systems and think the fact that a paper trail wasn't required from the beginning is practically criminal but what baffles me about all the problems they've been having is, I mean, wtf is so hard about ++?
1) you didn't talk about the process of getting you to court in the first place in your post, so I didn't either
2)same point other than to point out that either (a) this wouldn't be an issue if it were offered to you by the (c) holder or you d/l'd it without that permission. If the latter, which I assumed because you calculated, wrongly, the damges as if you had, then it's a different story. If you did d/l (reproduce, distribute) it w/o permission then you're into the stat. damages stuff if they ask for it.
as for the rest, whether the riaa is wrong (which they are) or right, you're just not going to win given copyright law.
Yes I read your post and you're just wrong. the mp3.com case shows this. Even if it didn't, the fact that you admitted to hundreds of "violations" to which you'd be willing to pay if sued also does, and more effectively at that.
You may have read the law, but you don't know how it works.
If you fought in court and you were only downloading you'd still lose. that's because if you violatate either the "reproduction" or the "distribution" right under copyright law you are hosed, as they say, per se.
as to the other points:
They don't need probable cause. this is a civil suit.
it's not a fair use. look up the fair use factors in the civil code. they are, in effect (1) he nature of the copyrighted work (a song) ; (2) the nature of the "infringing work" (just a replication of the whole song); (3) the amount of the copying (the whole thing); and (4) the effect on the market (the court will say in the aggregate it is devastating)
no one would ever buy that you we downloading directly to cd-r as OK by AHRA if you douwloaded the song off p2p to your computer
i object to the current state of the law, but the law as is stands id completely different than you seem to think it is.
I mean, "probable cause,"... dude, that has nothing to do with this.
And if there was no copyright law at all, the GPL would be unnecessary.
No. This is a big misunderstanding. In fact, without copyright the GPL would be impotent. Copyright, for right or wrong, is very restrictive and every time you write some original code it comes under copyright. GPL gets its power by granting certain rights over and above the restrictions of copyright. The GPL is a selective grant of rights which requires copyright as its base to have substance.
Without copyright there could be no GPL because you would have no rights to enforce if your code were, for instance, incorporated in a proprietary system (against the strictures of GPL).
GPL relies on copyright to make its requirements effective and enforceable.
yes 17 5 504 b defines "actual damages" but that won't help you.
read 504(a)(1) and (2)... the plaintiff is entitles to ask either for actual damages OR statutory damages. In your case you can bet they'll go for statutory. If you've got 300 infringements then you're paying between 750 and 30,000 per.
any time before final judgment the plaintiff can ask for statutory damages.
if you were to make that argument in court the riaa lawyer would chuckle and say something to the effect of "thanks for playing, game over." and then you'd get the hose of justice where i'm sure you don't want it.
Ok, so SCO is playing a last ditch opportunistic and ridiculous game here. That's a given. But what if they had been smarter. I know they didn't do this, but imagine they (or someone in the future did)...
SCO sees it's dying but knows it has IP rights in some of its stuff. Because the kernel code is open source, it invests the time and resources of an unscrupulous individual or two to inject infringing code into the kernel. A year later, it announces the travesty of justice it has just discovered, and sues.
Now imagine a company desperate to get rid of Linux and with plenty of time, deep pockets, and a history of low dealing gets a similar idea. We'll call them, for fun, Microsoft.
I know it would be fraudulent and criminal and I'm not suggesting it's about to happen or even that MS would do that, just that the open source model makes it easier for someone to pull a stunt like that.
ps: I know you can't just submit code and magically it's there in the kernel. I'm talking about either deliberate long term malfeasance or a rogue employee who gets a 'bright' idea and hatches a longish term plan.
pps: I know this could easily happen (and has happened) with proprietary source companies as well.. my point is it would be easier w/ open source, that's all.
ppps: I don't think it's a particularly brilliant insight.. just throwing it out there...
Guys, I'm on the anti-riaa, etc boat with you guys but I don't think it's that hypocritical. The music industry currently finds itself in a world in which there's massive p2p going on. If it can keep the control it once had (eg win the legal war or develop some effective technical self-help), well, then it sees that as the best. So we have the lawsuits and the DRM attempts.
But then there's also the first part of the above sentence -- the world as it is now features p2p and music sharing. Even if this isn't the world as they want it, they need to figure out how to exploit it as best they can. Hence, makethe most of (from their perspective) a bad situation, and mine p2p for some useful data.
They're trying to maximize their profits. If there's money to be made scouring p2p data then they'll buy the research, but just because they are scavenging some benefit out of it doesn't make it hypocritical for them to want it to go away.. it just makes them pragmatic.
I think the Patent Office needs something to do. Pulling the plug on misguided patents would be a worthwhile effort.
The patent office needs to *do something* but it certainly doesn't need something to do.
I'm a law student who spent the summer at a patent law firm working on software patent prosecution. You would not believe how understaffed the USPTO is for the volume of CS related patents. One of the ways this is most obvious is that a lot of objections the examiners sent back to us were completely, obviously, on their very face ridiculous. It was apparent that the patent examiner had read the material (either our claims or part of the defense of our application throughout the process), done a keyword search and found other patents using the same vocabulary but didn't do even a tiny little bit of investigation to find out if the work was even in the same area as our patent. Thus, we could overcome USPTO objections trivially most of the time because they were stupid objections.
Perhaps part of it was lack of experience on the part of the examiners, but I doubt it. They have way too many applications on their hands to do more than a cursory job with each one right now and the incentive structure just exacerbates the problem.
I also went to visit the USPTO over the summer and during our tour the guide (an examiner herself) mentioned that there were plans to hire some enormous quantity of new examiners in the next year. Although that won't fix the broken incentive structure, hopefully it'll help in some small way.
All of this is to say it's not as if the USPTO w/ its current staffing is sitting around twiddling its thumbs. Something needs to be done but they're not idly waiting for something to do.
There are concerns but there's also something kind of absurd with the way our nation works right now wrt MSFT.
MSFT writes code that's ubiquitous. America depends on it working and millions of dollars are lost every time a worm cascades through the internet. Also it's kind of sucky when the US can't issue visa's because of bad MSFT code. etc...
Because MSFT code is fundamentally important enough to affect our economy so profoundly, it is code of national importance.
Because it's code of national importance it's code on which national security rests.
It is absurd for us to allow MSFT to both disclaim liability for AND not release the code to its software if national security is involved. It makes us all dependent on a small group of engineers (probably) in Redmond rathern than the international group of eyes paying attention to, eg, apache. If MSFT wants to accept the risks that it posees to our nation by keeping its code locked up so we have to use it purely on trust then it should be held responsible for minimum standard of quality of that code. Auto-execing macros, for instance, should invoke liability whereas novel, ingenious, not "reasonably foreseeable" attacks perhaps not.
This isn't a fully formed idea but at least I think it's interesting.
The postal service has to deal with incomprehensible writing thousands of times every day and seems to do a pretty good job of it. With a little practice, unless you're perhaps a doctor in a hurry, it's not an issue. This is because we have good pattern recognition algorithms in our brains and can usually decipher poor handwriting to get the point. More so if we have lots of experience doing it.
I think that argument is sophistry. I'm talking about more than equipment. I'm talking about the compaines investing people and their time (PhDs) into making drugs to heal people. If there is no guarantee of return on a sucessful product because generics will immediately follow who will invest the money to do the initial research? It's in everyone's interest to be a free rider after the research is done and in no one's interest to do the research. My argument may not hold up but your post does not expose a reason as to why.
-nudicle
lasers and windsurfing? That's not compelling. What about all the drug and medicine research that wouldn't have happened if the companies pursuing it couldn't have expected to make their investments back with patent protection? A response to the above statement, by the way, is not to point out that drug companies can be bad and should lower prices especially in the 3rd world, etc.. that the patent system as regards drug companies is not perfect does not speak to the fact that it's the patent system that allowed those drugs to be created in the first place.
Um.... "hamstring consumers' technologies and rights?" Dude, users stopped having cognizable rights after the DMCA was passed so put your mind at ease!
-nudicle
But why should intent matter? After the Victoria's Secret decision lost profits only matter for dilution and no one will confuse Apple iTunes music store for another brand. After all, no one cares about the Apple who sold music of the Beatles.
-nudicle
No.
Legislating some abatement to the flood would restrict spam. the problem is there has been no effective legislation. When there is some there will be a 2st amendment challenge, which the spammers should lose b/c it's "commercial speech," and subject to less protection that real speech.
Slashdot Mirror
If you're anywhere near New England and like classic arcade games, check out Fun Spot in New Hampshire. When I worked in Boston I used to go up there once a year with friends just to revel in old school arcade. http://www.funspotnh.com/
There was no debate that Congress had authority to legislate in the Copyright arena. We had a 1909 Copyright alteration and another one in 1976 by Congress. McBride is trying to create an issue where there simply is none whatsoever.
Second, McBride's reliance on Eldred is misguided at best and (giving him intellectual credit he probably doesn't deserve) otherwise subersively misguided. Eldred was about extension of copyright terms retroacvitely (eg mickey mouse). "Profit" in the Mickey Mouse context is different than copyright and its use in the GPL context. It is obvious that the profusion of open source code incentivizes like-minded coders to promote the progress of science and the useful arts. Behold the Linux kernel, apache, samba, and all readers' other favorite free software/open source advances in our culture. This is both profitable for our culture and profitable for, eg (and devastatingly for MdBride's case) Red Hat and IBM. In short, McBride is an idiot.
The other obvious point, tied to the above comment, is that McBride completely fails to recognize the diffence between free as in beer and free as in speech. IBM hasn't missed this and IBM is profitable. Which is more than one can say for SCO.
SCO (and Boies, Schiller, Flexner)'s position is profoundly retarded and disingenuous. They should be spanked hard and often and until bleeding.
What a joke.
is dumb, wrong, and ignorant.
Red Hat and its lawyers *must* understand that the GPL gets all, as in 100%, of its power by copyright. Copyright gives you no authority to reproduce, distribute, or make derivative works of copyrighted code. The GPL relaxes those burdens. Without copyright it doesn't matter if there's a GPL statement on code you come across because the US isn't going to enforce rights in that code. It is copyright, for all its flaws and warts, that provides the fundamental power of the GPL.
Red Hat would be insane to argue against copyrightabilty of code because of this. And they don't
Second, and importantly, the GPL is therefore a *grant* of rights to the receiver of copyrighted code. Since in the U.S. code is subject to copyright which restricts, basically, everything, the GPL relieves some of those restrictions while imposing other requirements. the GPL is therefore generous, and abundantly so, in the face of U.S. copyright requirements. This is why the GPL will not be struck down and the very idea of its being so is fundamentally, frankly, dumb.
McBride is proving himself an idiot and his lawyers at Boies, Schiller, Flexner and embarrassing themselves ever more as each day passes.
Now this is something I have more than a little bit of experience with...
Which is to say, couldn't they conceivably claim issues with JCS, NUMA, RCU, and SMP code that's simply separate from what their boy Hellig was working near?
I realize that either way their argument is crap but it, if they are going to pull something like that, it's crap that they can still, albeit insultingly, disingenuously, and vexatiously, hold onto their claims and simply fail to admit what obvious liars they are?
Just wondering.
If FatWallet is extracting the sale information and repeating it, then there's no genuine issue and it's not a copyright problem. If they're reposting the ads wholesale then they will probably be protected by "thin" copyright and the court will analyze it under Feist for a minimum of creativity (and public good, and fair use .. since the lawyers will bring up all those issues) ....
Either way, what FatWallet is doing should be legal. (again, I don't know exactly what they're doing, but if they're either extracting the facts and reposting them or copying the (what i presume to be simple coupon) ads I still think, for what it's worth (absolutely nothing), that it should be OK.
And irrespective of all that, the DMCA provisions for subpoena are obnoxious and wrong.
Another uneducated opinion from a /.'er,
nudicle
-nudicle
I, for one, salute you.
2)same point other than to point out that either (a) this wouldn't be an issue if it were offered to you by the (c) holder or you d/l'd it without that permission. If the latter, which I assumed because you calculated, wrongly, the damges as if you had, then it's a different story. If you did d/l (reproduce, distribute) it w/o permission then you're into the stat. damages stuff if they ask for it.
as for the rest, whether the riaa is wrong (which they are) or right, you're just not going to win given copyright law.
Yes I read your post and you're just wrong. the mp3.com case shows this. Even if it didn't, the fact that you admitted to hundreds of "violations" to which you'd be willing to pay if sued also does, and more effectively at that.
You may have read the law, but you don't know how it works.
as to the other points:
They don't need probable cause. this is a civil suit.
it's not a fair use. look up the fair use factors in the civil code. they are, in effect (1) he nature of the copyrighted work (a song) ; (2) the nature of the "infringing work" (just a replication of the whole song); (3) the amount of the copying (the whole thing); and (4) the effect on the market (the court will say in the aggregate it is devastating)
no one would ever buy that you we downloading directly to cd-r as OK by AHRA if you douwloaded the song off p2p to your computer
i object to the current state of the law, but the law as is stands id completely different than you seem to think it is.
I mean, "probable cause," ... dude, that has nothing to do with this.
-nudicle.
No. This is a big misunderstanding. In fact, without copyright the GPL would be impotent. Copyright, for right or wrong, is very restrictive and every time you write some original code it comes under copyright. GPL gets its power by granting certain rights over and above the restrictions of copyright. The GPL is a selective grant of rights which requires copyright as its base to have substance.
Without copyright there could be no GPL because you would have no rights to enforce if your code were, for instance, incorporated in a proprietary system (against the strictures of GPL).
GPL relies on copyright to make its requirements effective and enforceable.
read 504(a)(1) and (2) ... the plaintiff is entitles to ask either for actual damages OR statutory damages. In your case you can bet they'll go for statutory. If you've got 300 infringements then you're paying between 750 and 30,000 per.
any time before final judgment the plaintiff can ask for statutory damages.
if you were to make that argument in court the riaa lawyer would chuckle and say something to the effect of "thanks for playing, game over." and then you'd get the hose of justice where i'm sure you don't want it.
SCO sees it's dying but knows it has IP rights in some of its stuff. Because the kernel code is open source, it invests the time and resources of an unscrupulous individual or two to inject infringing code into the kernel. A year later, it announces the travesty of justice it has just discovered, and sues.
Now imagine a company desperate to get rid of Linux and with plenty of time, deep pockets, and a history of low dealing gets a similar idea. We'll call them, for fun, Microsoft.
I know it would be fraudulent and criminal and I'm not suggesting it's about to happen or even that MS would do that, just that the open source model makes it easier for someone to pull a stunt like that.
ps: I know you can't just submit code and magically it's there in the kernel. I'm talking about either deliberate long term malfeasance or a rogue employee who gets a 'bright' idea and hatches a longish term plan.
pps: I know this could easily happen (and has happened) with proprietary source companies as well .. my point is it would be easier w/ open source, that's all.
ppps: I don't think it's a particularly brilliant insight .. just throwing it out there...
But then there's also the first part of the above sentence -- the world as it is now features p2p and music sharing. Even if this isn't the world as they want it, they need to figure out how to exploit it as best they can. Hence, makethe most of (from their perspective) a bad situation, and mine p2p for some useful data.
They're trying to maximize their profits. If there's money to be made scouring p2p data then they'll buy the research, but just because they are scavenging some benefit out of it doesn't make it hypocritical for them to want it to go away .. it just makes them pragmatic.
On second thought, the first sentence above encapsulates both possibilities quite well.
Assuming, that is, there is no amorous company in said elevator...
CmdrTaco does the worst job posting...
The patent office needs to *do something* but it certainly doesn't need something to do.
I'm a law student who spent the summer at a patent law firm working on software patent prosecution. You would not believe how understaffed the USPTO is for the volume of CS related patents. One of the ways this is most obvious is that a lot of objections the examiners sent back to us were completely, obviously, on their very face ridiculous. It was apparent that the patent examiner had read the material (either our claims or part of the defense of our application throughout the process), done a keyword search and found other patents using the same vocabulary but didn't do even a tiny little bit of investigation to find out if the work was even in the same area as our patent. Thus, we could overcome USPTO objections trivially most of the time because they were stupid objections.
Perhaps part of it was lack of experience on the part of the examiners, but I doubt it. They have way too many applications on their hands to do more than a cursory job with each one right now and the incentive structure just exacerbates the problem.
I also went to visit the USPTO over the summer and during our tour the guide (an examiner herself) mentioned that there were plans to hire some enormous quantity of new examiners in the next year. Although that won't fix the broken incentive structure, hopefully it'll help in some small way.
All of this is to say it's not as if the USPTO w/ its current staffing is sitting around twiddling its thumbs. Something needs to be done but they're not idly waiting for something to do.
MSFT writes code that's ubiquitous. America depends on it working and millions of dollars are lost every time a worm cascades through the internet. Also it's kind of sucky when the US can't issue visa's because of bad MSFT code. etc...
Because MSFT code is fundamentally important enough to affect our economy so profoundly, it is code of national importance.
Because it's code of national importance it's code on which national security rests.
It is absurd for us to allow MSFT to both disclaim liability for AND not release the code to its software if national security is involved. It makes us all dependent on a small group of engineers (probably) in Redmond rathern than the international group of eyes paying attention to, eg, apache. If MSFT wants to accept the risks that it posees to our nation by keeping its code locked up so we have to use it purely on trust then it should be held responsible for minimum standard of quality of that code. Auto-execing macros, for instance, should invoke liability whereas novel, ingenious, not "reasonably foreseeable" attacks perhaps not.
This isn't a fully formed idea but at least I think it's interesting.
-nudicle
The postal service has to deal with incomprehensible writing thousands of times every day and seems to do a pretty good job of it. With a little practice, unless you're perhaps a doctor in a hurry, it's not an issue. This is because we have good pattern recognition algorithms in our brains and can usually decipher poor handwriting to get the point. More so if we have lots of experience doing it.
I think that argument is sophistry. I'm talking about more than equipment. I'm talking about the compaines investing people and their time (PhDs) into making drugs to heal people. If there is no guarantee of return on a sucessful product because generics will immediately follow who will invest the money to do the initial research? It's in everyone's interest to be a free rider after the research is done and in no one's interest to do the research. My argument may not hold up but your post does not expose a reason as to why. -nudicle
lasers and windsurfing? That's not compelling. What about all the drug and medicine research that wouldn't have happened if the companies pursuing it couldn't have expected to make their investments back with patent protection? A response to the above statement, by the way, is not to point out that drug companies can be bad and should lower prices especially in the 3rd world, etc.. that the patent system as regards drug companies is not perfect does not speak to the fact that it's the patent system that allowed those drugs to be created in the first place.
Um .... "hamstring consumers' technologies and rights?" Dude, users stopped having cognizable rights after the DMCA was passed so put your mind at ease!
-nudicle
But why should intent matter? After the Victoria's Secret decision lost profits only matter for dilution and no one will confuse Apple iTunes music store for another brand. After all, no one cares about the Apple who sold music of the Beatles. -nudicle
No. Legislating some abatement to the flood would restrict spam. the problem is there has been no effective legislation. When there is some there will be a 2st amendment challenge, which the spammers should lose b/c it's "commercial speech," and subject to less protection that real speech.