FTFA: The suit was filed in the New York Supreme Court.
Unless you're a lawyer or have some twisted interest in these things, this probably isn't the court you're thinking of. States usually have three levels of courts: trial court, court of last appeal, and an intermediate appellate court. (Some states do away with the latter.) Normally, the Supreme Court is the court of last appeal, but in New York it's backwards. The New York Supreme Court is really the trial court, then comes the Appellate Division, then finally the New York Court of Appeals at the top of the ladder.
Rights can be created, usually by the State. For instance, the right to vote. Probably no one here, but some would argue that owning property is a State-granted right. (If you don't believe me, try to buy urban land in China.) How about the right to get equal treatment based on race, color, gender, ancestry, or age? How about the right to an education? The right to medical treatment? You aren't born with any of those.
The EULAs already prohibit you from serving content - eventually someone'll start enforcing that.
I wouldn't hold my breath. As soon as they do, all their customers will jump ship to someone who doesn't. Unless: (1) ISP has a monopoly in the region. Expect lawsuits. Or (2) all ISPs collude to enforce their EULAs simultaneously. Hello, Prisoner's Dilemma.
Granted, this is an oversimplification, but it captures the general shape of the argument.
I've been living without movies for years now, and I watch a small number of television programs. And those are mostly on the Cartoon Network -- I can live without them.
On a related note: the purpose of copyright is to stimulate expression. The Constitution says so. Therefore, anyone who uses copyright to restrict expression should be scorned, and their actions thwarted. Outlawing digital receiver recorders prohibits people from using technology to communicate. If you do it on the premise of copyright protection, it should fail. It's that simple.
how difficult would it be to just refuse to step down after your term was up?
This hasn't happened yet, so there's no case law. I suspect that, if a sitting President remained 'in office' past January 20, someone would file a lawsuit that gets fast-tracked to the Supreme Court. (If a State filed the lawsuit, the Supreme Court would have original jurisdiction, and sit as a trial court. 28 U.S.C. 1251.) Since the 20th Amendment plainly states that the President's term ends on January 20th at noon, I believe the Court would rule that the person inhabiting the White House is, as a matter of law, not the President. The ex-President would be subject to a bench warrant for arrest (for a raft of crimes, the least of which is probably impersonating the President), and any action taken by anyone in support of that person could then be construed as conspiracy to commit sedition against the legitimate government. If the former President had substantial support in the military, then there might be a fracturing of the Armed Forces, and a civil war, with the losing side subject to summary execution for treason. I seriously doubt it would come to that, though. There are (still, thankfully) far too many sane people in this country.
I'd like whatever authority that the administration *imagines* gives them the power to do warantless wiretaps specifically removed.
Executive privilege is an extraordinary assertion of power "not to be lightly invoked." United States v. Reynolds, 345 U.S. 1, 7 (1953). Once executive privilege is asserted, coequal branches of the Government are set on a collision course. The Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executive's Article II prerogatives. This inquiry places courts in the awkward position of evaluating the Executive's claims of confidentiality and autonomy, and pushes to the fore difficult questions of separation of powers and checks and balances. These "occasion[s] for constitutional confrontation between the two branches" should be avoided whenever possible. United States v. Nixon, 418 U.S. 683, 692 (1974).
NSA wiretaps of communications between citizens located domestically and others abroad fall under the 'privacy versus defense' rubric, and they may or may not be constitutional. On the one side, you have the authority to provide for the common defense, and on the other, the privacy protections of the 4th and 14th Amendments (and maybe a few others besides). It depends on how the Supreme Court thinks the particular policies behind the laws play against each other, in light of the real facts of the case (as opposed to the media's take), and, shockingly enough, how well the lawyers write briefs and argue. I'm not going to dismissively cl
The relevant statute from VARA applies only to a "work of visual art", which is defined in section 101. I quote:
A "work of visual art" is-- (1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or (2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.
A work of visual art does not include-- (A) (i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication; (ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container; (iii) any portion or part of any item described in clause (i) or (ii); (B) any work made for hire; or (C) any work not subject to copyright protection under this title.
Do you think the images in question would jump off the CD, print themselves and hand themselves to bypassers?
No, but apparently the court didn't have a problem convicting Orito of transporting 83 reels of film on an airplane, where "the images in question wouldn't jump off the reel, print themselves and hand themselves to bypassers." The obvious difference is that in one case, there is interstate commerce, and in the other there isn't. Yes, my second 'strike' argument was pretty weak. On the other hand, it's not determinative, and neither is your argument. The argument about transporting from work to home not being interstate commerce is good, but the interstate commerce (the download) has already happened by the time you get to that point. (My 'three strikes' argument was more motivational than anything. If I were a juror, I'd think his place of employment was damning, even if it wasn't relevant. 'Not supposed to, happens anyway.')
As for 'private acquisition': I don't believe that downloading porn at work on a computer that isn't yours is 'private'. This is my personal opinion. I think employers have the right to require that their computers be used only for work purposes. This goes double for government employers, whose equipment is paid for using tax dollars. I've worked at some jobs where such restrictions were in place, and I don't think those restrictions involve Bill of Rights issues. IMHO, if you're going to download porn, that's fine, but do it at home. Common sense would tell you not to do it at work. Why? Because you don't have a reasonable expectation of privacy at work! I think it's hard to argue private action on the Whorley facts.
The Whorley court didn't rule on downloading obscene materials at home (or any place where you have a reasonable, legitimate, or justifiable expectation of privacy). That's why I'm still hopeful.
Whorley was charged under sections 1462, 1466A, and 2252A of Title 18, United States Code. I don't know which counts he was convicted on. (Thanks, PACER.) 1466A was passed as part of Pub. L. 108-21, on April 30, 2003, so I believe this is the law the article refers to. 1466A(c) states that it is not a required that the minor depicted actually exist.
1462 and 1466A lie within the general obscenity chapter, not within the child exploitation chapter, and the congressional findings and policies for regulating each differ. The point was that Whorley was convicted of receiving obscene materials. The fact that they were cartoons, or wholly the products of the human imagination, was likely not ultimately determinative.
Presuming Whorley was using computers to transport obscene comics, convicting him for public distribution and/or viewing is a legal contortion at best.
That's very similar to how the court came out in Orito. In Orito, the defendant was convicted of transporting 83 reels of film containing obscene materials on a public airline from San Fransisco to Milwaukee. The statute forbidding that behavior didn't rely on the government's direct interest in preventing obscenity, but rather the (indirect) interest in preventing obscene materials from entering interstate commerce. In other words, they relied on the Interstate Commerce Clause, similar to the Lottery Case.
The issues are slightly different here. The big issue is that the district court found 1466A was not overly broad, and fell within the umbrella of Miller, which would mean that you'd have to be pretty creative to get it overturned. Granted, 1466A hasn't been tested in an appellate court yet, but the prospects don't look good.
Whorley did use a channel of interstate commerce (his ISP) to transport obscene material, so the ICC argument could be made to defend the constitutionality of 1466A. There's an argument to be made that ISPs
are different from airlines, in terms of their inspection requirements. There are serious Fourth Amendment objections to ISPs inspecting the bits they push, similar to the USPS opening your mail at each mail hop. If the transaction in the materials was totally private between consenting adults, using the ISPs as "secure, ignorant intermediaries", one could argue that the Stanley protections apply.
At first, I was ready to jump on the bandwagon with you. I have since read several of the recent Supreme Court cases on child pornography, and United States v. Whorley, 386 F. Supp. 2d 693 (E.D. Va. 2005). I think the conviction was proper.
Quoting from the case:
The universe of child pornography is comprised of materials in two broad categories, those involving depictions of an actual child, and the others portraying simulated representations. The former class of materials need not satisfy the legal definition of obscene to be banned. This category enjoys no First Amendment protection because the underlying production necessary involves the sexual exploitation of children. The latter class of materials, involving simulated images of children engaged in a sexually explicit conduct, can only be prohibited if they [are obscene].
Whorley, 386 F. Supp. 2d at 696. The Supreme Court held in Stanley v. Georgia, 394 U.S. 557 (1969) that a person was entitled to possess and watch obscene materials in their own home for their own intellectual stimulation, because the State cannot control what people think. However, the Court has consistently rejected constitutional protection for obscene material outside the home. United States v. Orito, 413 U.S. 139, 143 (1973). On the same day it decided Orito, the Court gave obscenity a definition, in Miller v. California, 413 U.S. 15 (1973). That case, in turn, held that obscenity could be suppressed over First Amendment objections due to the governmental interest in preventing "a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles." Miller, 413 U.S. at 18-19. Miller and Stanley compliment each other: a person can watch obscene porn in their home, but not where the public or young people can see it. IMHO, that's a sensible approach.
Mr. Whorley downloaded child porn at work: strike one. He would have had to transport it from his work to his house through public places where it might have been exposed to unwilling recipients or juveniles: strike two. Did I mention, he worked for the State of Virginia, at a Virginia Employment Commission office? Strike three, he's out.
Note: the following is personal speculation. There's a difference between downloading obscene porn at work and at home. At work, other people might see it. At home, that's much less likely. The only people who 'receive' the porn in a p2p download are the common carrier ISPs in between the sender and receiver. Generally speaking, the Bush administration notwithstanding, carriers aren't required to monitor the content of the bits they push, nor should they be due to Fourth Amendment policy reasons. Some do voluntarily -- that's up to them. If they do intercept the content and analyze it, they are no longer 'unwilling recipients', and since child labor is outlawed, they aren't juveniles either. Therefore, the justification in Miller for suppressing the content-based speech shouldn't apply. (And for goodness sake, ISPs already know that most of their traffic is porn anyway. It's not like they'd suddenly be taken by surprise.) Courts should be required to find some alternate reason to justify the speech suppression, or they should allow the download, despite its obvious obscenity, on First Amendment grounds.
If someone is convicted of downloading virtual child porn at home, then I'd start to worry about the Bill of Rights being eroded. Until then, I'm going to stick with guarded optimism and counting the days until January 20, 2009.
The reality is that Microsoft is made up of mostly honest, earnest, hardworking people.
Lots of organizations that did evil were primarily staffed by honest, earnest, hardworking people, who just joined up because they needed a job, or needed hope, or needed a place to fit in. That doesn't make them bad people; nevertheless, their company / organization / government was evil. I hereby invoke Godwin's Law, because the primary example I can think of where this was the case was the German National Socialist party in the 1930s. Many of the members were disenfranchised as a result of the horrible hyperinflation, due at least in part to the Great Depression. In fact, the Weimar inflationary period has been described by some historians as the worst example of inflation in history. (I'll leave my rant about the Federal Reserve causing the Great Depression for another thread.)
As a result of Hitler's propaganda and promises to unite the German people and lead them out of depression, many joined the Nazi party. It wasn't because they were evil themselves, but because they believed in the 'party platform'. No rational person would accuse someone for being evil just because they joined the Democrats or Republicans. (In fact, both parties are talking about ways to get out of the $40 trillion unpaid Social Security debt.) The problem with the Nazis was the party leadership, not the working-class Joe. In the same vein, the problem with Microsoft isn't their reverse-tanned legions, it's the geeks at the top of the food chain who are calling the shots.
Since I've invoked the Nazis, I declare this thread to be dead.
Indeed. For those of you who don't know the history of marijuana scheduling, see this wikipedia article, and Justice Stevens' footnote 37 from Gonzales v. Raich:
We acknowledge that evidence proffered by [the marijuana users] regarding the effective medical uses for marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that require marijuana to be listed in Schedule I. See, e.g., Institute of Medicine, Marijuana and Medicine: Assessing the Science Base 179 (J. Joy, S. Watson, & J. Benson eds.1999) (recognizing that "[s]cientific data indicate the potential therapeutic value of cannabinoid drugs, primarily THC [Tetrahydrocannabinol] for pain relief, control of nausea and vomiting, and appetite stimulation"); see also Conant v. Walters, 309 F.3d 629, 640-643 (9th Cir. 2002) (Kozinski, J., concurring) (chronicling medical studies recognizing valid medical uses for marijuana and its derivatives). But the possibility that the drug may be reclassified in the future has no relevance to the question whether Congress now has the power to regulate its production and distribution. Respondents' submission, if accepted, would place all homegrown medical substances beyond the reach of Congress' regulatory jurisdiction.
Let's be careful to dissect the different rights granted to a copyright holder.
Here is the distribution right:
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: . . . to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending. 17 U.S.C. 106(3).
Here is first sale doctrine:
Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. 17 U.S.C. 109(a).
Note that section 109 uses the word "owner" -- the one who controls title. The law makes a distinction between owning a CD (as plastic), and owning the music or software on that CD (as bits). In order to invoke first sale doctrine, you have to own the copy of the software, or be authorized. Now let's have a look at a typical MSFT EULA:
3. RESERVATION OF RIGHTS AND OWNERSHIP. Microsoft reserves all rights not expressly granted to you in this EULA. The Software is protected by copyright and other intellectual property laws and treaties. Microsoft or its suppliers own the title, copyright, and other intellectual property rights in the Software. The Software is licensed, not sold. (MSFT retains ownership of the software)
13. SOFTWARE TRANSFER. . . . Transfer to Third Party. The initial user of the Software may make a one-time permanent transfer of this EULA and Software to another end user, provided the initial user retains no copies of the Software. This transfer must include all of the Software (including all component parts, the media and printed materials, any upgrades, this EULA, and, if applicable, the Certificate of Authenticity). The transfer may not be an indirect transfer, such as a consignment. Prior to the transfer, the end user receiving the Software must agree to all the EULA terms. ('the owner authorizes')
There are some who argue that software licenses are effectively sales. I tend to agree, because MSFT no longer controls the software. However, with 'activation' and other 'phone home' software, this may not really be the case. If MSFT exerts control over my PC from Redmond, then they have a legitimate claim that I'm 'just a terminal'.
if it's licensed then one should be allowed to make backups of the disc or receive a replacement disc if the disc gets lost or damaged
Here is the reproduction right:
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: . . . to reproduce the copyrighted work in copies or phonorecords. 17 U.S.C. 106(1).
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 fac
Kids in the developing world need the newest technology, especially really rugged hardware and innovative software.
No, kids in the developing world need food, medicine, and a place to live where they aren't shot by their own government. They don't need computers. They probably don't even want computers, or any other "newest technology".
I am all for cheap computers, and I'm all for educating children in developing nations, but I don't think the two really mesh well.
There seems to be some confusion over what, exactly, the position entails. I know this is/., and I know people like to jump to conclusions, but get the facts! Look at how the office of Technology Administration fits into the overall Commerce org chart. You see what he's not? (Undersecretary for Intellectual Property) Then read the list of offices controlled by the Technology Undersecretary.
They RF'ed our cannon! Those poor, dumb bastards at MIT have no idea what they've done. Now how are all the poor frosh going to know that rotation is over? They'll be left to fend for themselves! We might lose up to 10% in the first wave alone. And finals will never end, so no one will graduate! This is a disaster!
Write your State Representative right now, and express your support for HF3971, styled "Open data format usage by state agencies required", and HF3982, styled "Open source software usage by state agencies for creation of public documents required." The second bill says:
For purposes of this section, "open source software" means software that: (1) is free for anyone to use, without payment of a royalty or other fee; and (2) can be used effectively without payment of a fee or royalty in combination with other software commonly used to create, store, transmit, receive, and access data.
It's possible that "is free for anyone to use" could be construed as a libre position, and "without payment of a royalty or other fee" could be construed as an additional gratis position, but I don't know if that's how the committee will understand it. When you write your Rep, let them know if you want one meaning or both. (Is it two independent clauses, or is the second half subordinate to the word "free"? Damn ambiguous use of the comma in legislation...)
You can find out who represents you here. If they hear from a lot of people, they will get a theoretical warm fuzzy knowing that the issue is important to their constituency, and that they're doing the right thing. More importantly, they'll get a very down-to-earth political message, that if they don't vote for this thing it could be their ass in the elections coming up in November.
The library may not reproduce, display, or distribute work that is in its last 20 years of copyright if the work is still commercially circulated, a copy can be obtained at a reasonable price, or the copyright owner makes a special notice.
Just to clarify.
That's sort of the opposite of the point. The point is that there is an exception to copyright explicitly allowing libraries to distribute copyrighted materials in the last 20 years of their statutory period (absent certain exceptions, like the work is still 'making someone money'). This provision was a compromise in a recent copyright term extension law. The way you stated the law, it sounded like libraries had this right already and the law was taking it away.
Becoming a lawyer? Practising law requires the same analytical abilities that you need for CS, but lawyers also write a lot. And we need more lawyers to advocate for peaceful, productive uses of technology, since there are a lot of people up on Capitol Hill trying to stifle creativity and free communication just to make a buck.
For anyone trying to track down the report by the (first) President's Commission: the ISBN number is 0394469941. To find it at a local library, check out this site.
A tax is placed on email transport and delivery. Corporations that send or receive email will charge higher prices to their customers to compensate. People who buy from these corporations will increase their prices accordingly, and so on. The ultimate outcome is that retail prices go up, pretty much everywhere. And where does this money go? To a new business that adds nothing productive to society.
That's a great idea. Oh wait, no, that idea sucks. Just because something has value, doesn't mean that you should have to pay anything for it. By that logic, if you're using Linux for no cost, you should hurry up and pay Linus Torvalds and a couple of thousand of his friends, because you're obviously ripping them off. Oh yeah, you like to breathe the air and sit in the sun, don't you? Better pay God and His buddies at whatever church you go to, or they might take it all away.
This whole argument is academic anyway. As soon as one provider starts charging for email, another one will realize they can get a lot of business by not charging for it, and making money in other ways (like ads). Compare cable TV to broadcast TV. Free email is here to stay.
Slate recently published an article on the economics of movie theaters. Basically, it boils down to three things: selling Coke & popcorn, selling tickets, and selling on-screen ads. The Coke & popcorn sales are essentially pure profit, due to the high margins. Tickets are split with the studio roughly 50-50 depending on the deal, but the theaters eat the cost of showing the movies and maintaining staff. On-screen ads are nearly pure profit as well, but they soak up precious minutes that could be used showing actual movies, at the expense of ticket sales (which upsets the studios).
Given an alternative between buying the DVD and going to a theater, a person will choose what option gives them the best value for their money (external factors such as marketing bias aside). Home viewing of DVDs is more cost-effective in the long run, due to the high overhead of food sales at theaters and the ability to view the movie multiple times for one fixed cost.
What do theaters lose when DVDs are offered soon after the movie release? People will choose DVD over theater, and the theaters will go under. Even if theaters do manage to provide a better viewing experience (cell phones, sticky floors, and babies crying are clear detriments), they can't compete with a slightly worse product that costs a lot less.
What do studios gain by offering DVDs quickly? They don't have to split profits with anyone, and they don't have to deal with third party theaters cutting into their profits by showing ads. What's more, studios could stop releasing film altogether, and provide only straight-to-home-viewing-device products, eliminating theaters entirely. With the current state of technology, this may happen anyway, as more and more theaters become bankrupt.
First, I at least have never felt that creation and invention wouldn't occur without copyrights and patents, respectively. Second, however, the quantity of those acts would likely decrease sharply.
Do you have any solid evidence to support your last statement? To my knowledge, there have never been any scientific case studies on the effect of a lack of copyright on mass-market creativity, because copyright law is not a variable which can be clinically controlled. Anglo-American history has had author copyrights for almost three hundred years now -- I don't know how one would even attempt such a study. Merely polling artists is insufficient, since there are too many uncontrollable variables to consider. And although the Framers obviously thought copyright important enough to include in the Constitution, it is only a suggested method of promoting progress. Government grants and subsidies are another; in my opinion, the NEA has significantly promoted the arts. Congress clearly has the power to enact laws supporting these systems already, without invoking clause 8. And although the regimes are different, I could also make a nearly identical argument for patents.
Have you ever met matter that didn't produce a gravitational force? Theoretically, any matter that moves creates changes in the local curvature of spacetime that propagate (i.e., gravity waves). The 'novel' aspect of this is the interaction between electromagnetism and gravity. Although, if you read Einstein's work directly, he predicted just this sort of relationship. It falls naturally out of the field equations.
Slashdot Mirror
Unless you're a lawyer or have some twisted interest in these things, this probably isn't the court you're thinking of. States usually have three levels of courts: trial court, court of last appeal, and an intermediate appellate court. (Some states do away with the latter.) Normally, the Supreme Court is the court of last appeal, but in New York it's backwards. The New York Supreme Court is really the trial court, then comes the Appellate Division, then finally the New York Court of Appeals at the top of the ladder.
Just FYI.
Rights can be created, usually by the State. For instance, the right to vote. Probably no one here, but some would argue that owning property is a State-granted right. (If you don't believe me, try to buy urban land in China.) How about the right to get equal treatment based on race, color, gender, ancestry, or age? How about the right to an education? The right to medical treatment? You aren't born with any of those.
I wouldn't hold my breath. As soon as they do, all their customers will jump ship to someone who doesn't. Unless: (1) ISP has a monopoly in the region. Expect lawsuits. Or (2) all ISPs collude to enforce their EULAs simultaneously. Hello, Prisoner's Dilemma.
Granted, this is an oversimplification, but it captures the general shape of the argument.
On a related note: the purpose of copyright is to stimulate expression. The Constitution says so. Therefore, anyone who uses copyright to restrict expression should be scorned, and their actions thwarted. Outlawing digital receiver recorders prohibits people from using technology to communicate. If you do it on the premise of copyright protection, it should fail. It's that simple.
This hasn't happened yet, so there's no case law. I suspect that, if a sitting President remained 'in office' past January 20, someone would file a lawsuit that gets fast-tracked to the Supreme Court. (If a State filed the lawsuit, the Supreme Court would have original jurisdiction, and sit as a trial court. 28 U.S.C. 1251.) Since the 20th Amendment plainly states that the President's term ends on January 20th at noon, I believe the Court would rule that the person inhabiting the White House is, as a matter of law, not the President. The ex-President would be subject to a bench warrant for arrest (for a raft of crimes, the least of which is probably impersonating the President), and any action taken by anyone in support of that person could then be construed as conspiracy to commit sedition against the legitimate government. If the former President had substantial support in the military, then there might be a fracturing of the Armed Forces, and a civil war, with the losing side subject to summary execution for treason. I seriously doubt it would come to that, though. There are (still, thankfully) far too many sane people in this country.
I'd like whatever authority that the administration *imagines* gives them the power to do warantless wiretaps specifically removed.
You mean, the authority to provide for the common defense? That authority? Constitutional law is a tricky area when the policies specifically endorsed by the document come into conflict. Here's a choice quote from Cheney v. United States Dist. Court, 542 U.S. 367, 389-390 (2004):
NSA wiretaps of communications between citizens located domestically and others abroad fall under the 'privacy versus defense' rubric, and they may or may not be constitutional. On the one side, you have the authority to provide for the common defense, and on the other, the privacy protections of the 4th and 14th Amendments (and maybe a few others besides). It depends on how the Supreme Court thinks the particular policies behind the laws play against each other, in light of the real facts of the case (as opposed to the media's take), and, shockingly enough, how well the lawyers write briefs and argue. I'm not going to dismissively cl
No, but apparently the court didn't have a problem convicting Orito of transporting 83 reels of film on an airplane, where "the images in question wouldn't jump off the reel, print themselves and hand themselves to bypassers." The obvious difference is that in one case, there is interstate commerce, and in the other there isn't. Yes, my second 'strike' argument was pretty weak. On the other hand, it's not determinative, and neither is your argument. The argument about transporting from work to home not being interstate commerce is good, but the interstate commerce (the download) has already happened by the time you get to that point. (My 'three strikes' argument was more motivational than anything. If I were a juror, I'd think his place of employment was damning, even if it wasn't relevant. 'Not supposed to, happens anyway.')
As for 'private acquisition': I don't believe that downloading porn at work on a computer that isn't yours is 'private'. This is my personal opinion. I think employers have the right to require that their computers be used only for work purposes. This goes double for government employers, whose equipment is paid for using tax dollars. I've worked at some jobs where such restrictions were in place, and I don't think those restrictions involve Bill of Rights issues. IMHO, if you're going to download porn, that's fine, but do it at home. Common sense would tell you not to do it at work. Why? Because you don't have a reasonable expectation of privacy at work! I think it's hard to argue private action on the Whorley facts.
The Whorley court didn't rule on downloading obscene materials at home (or any place where you have a reasonable, legitimate, or justifiable expectation of privacy). That's why I'm still hopeful.
1462 and 1466A lie within the general obscenity chapter, not within the child exploitation chapter, and the congressional findings and policies for regulating each differ. The point was that Whorley was convicted of receiving obscene materials. The fact that they were cartoons, or wholly the products of the human imagination, was likely not ultimately determinative.
Presuming Whorley was using computers to transport obscene comics, convicting him for public distribution and/or viewing is a legal contortion at best.
That's very similar to how the court came out in Orito . In Orito, the defendant was convicted of transporting 83 reels of film containing obscene materials on a public airline from San Fransisco to Milwaukee. The statute forbidding that behavior didn't rely on the government's direct interest in preventing obscenity, but rather the (indirect) interest in preventing obscene materials from entering interstate commerce. In other words, they relied on the Interstate Commerce Clause, similar to the Lottery Case .
The issues are slightly different here. The big issue is that the district court found 1466A was not overly broad, and fell within the umbrella of Miller, which would mean that you'd have to be pretty creative to get it overturned. Granted, 1466A hasn't been tested in an appellate court yet, but the prospects don't look good.
Whorley did use a channel of interstate commerce (his ISP) to transport obscene material, so the ICC argument could be made to defend the constitutionality of 1466A. There's an argument to be made that ISPs are different from airlines, in terms of their inspection requirements. There are serious Fourth Amendment objections to ISPs inspecting the bits they push, similar to the USPS opening your mail at each mail hop. If the transaction in the materials was totally private between consenting adults, using the ISPs as "secure, ignorant intermediaries", one could argue that the Stanley protections apply.
Quoting from the case:
Whorley, 386 F. Supp. 2d at 696. The Supreme Court held in Stanley v. Georgia, 394 U.S. 557 (1969) that a person was entitled to possess and watch obscene materials in their own home for their own intellectual stimulation, because the State cannot control what people think. However, the Court has consistently rejected constitutional protection for obscene material outside the home. United States v. Orito, 413 U.S. 139, 143 (1973). On the same day it decided Orito, the Court gave obscenity a definition, in Miller v. California, 413 U.S. 15 (1973). That case, in turn, held that obscenity could be suppressed over First Amendment objections due to the governmental interest in preventing "a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles." Miller, 413 U.S. at 18-19. Miller and Stanley compliment each other: a person can watch obscene porn in their home, but not where the public or young people can see it. IMHO, that's a sensible approach.Mr. Whorley downloaded child porn at work: strike one. He would have had to transport it from his work to his house through public places where it might have been exposed to unwilling recipients or juveniles: strike two. Did I mention, he worked for the State of Virginia, at a Virginia Employment Commission office? Strike three, he's out.
Note: the following is personal speculation. There's a difference between downloading obscene porn at work and at home. At work, other people might see it. At home, that's much less likely. The only people who 'receive' the porn in a p2p download are the common carrier ISPs in between the sender and receiver. Generally speaking, the Bush administration notwithstanding, carriers aren't required to monitor the content of the bits they push, nor should they be due to Fourth Amendment policy reasons. Some do voluntarily -- that's up to them. If they do intercept the content and analyze it, they are no longer 'unwilling recipients', and since child labor is outlawed, they aren't juveniles either. Therefore, the justification in Miller for suppressing the content-based speech shouldn't apply. (And for goodness sake, ISPs already know that most of their traffic is porn anyway. It's not like they'd suddenly be taken by surprise.) Courts should be required to find some alternate reason to justify the speech suppression, or they should allow the download, despite its obvious obscenity, on First Amendment grounds.
If someone is convicted of downloading virtual child porn at home, then I'd start to worry about the Bill of Rights being eroded. Until then, I'm going to stick with guarded optimism and counting the days until January 20, 2009.
Lots of organizations that did evil were primarily staffed by honest, earnest, hardworking people, who just joined up because they needed a job, or needed hope, or needed a place to fit in. That doesn't make them bad people; nevertheless, their company / organization / government was evil. I hereby invoke Godwin's Law, because the primary example I can think of where this was the case was the German National Socialist party in the 1930s. Many of the members were disenfranchised as a result of the horrible hyperinflation, due at least in part to the Great Depression. In fact, the Weimar inflationary period has been described by some historians as the worst example of inflation in history. (I'll leave my rant about the Federal Reserve causing the Great Depression for another thread.)
As a result of Hitler's propaganda and promises to unite the German people and lead them out of depression, many joined the Nazi party. It wasn't because they were evil themselves, but because they believed in the 'party platform'. No rational person would accuse someone for being evil just because they joined the Democrats or Republicans. (In fact, both parties are talking about ways to get out of the $40 trillion unpaid Social Security debt.) The problem with the Nazis was the party leadership, not the working-class Joe. In the same vein, the problem with Microsoft isn't their reverse-tanned legions, it's the geeks at the top of the food chain who are calling the shots.
Since I've invoked the Nazis, I declare this thread to be dead.
Here is the distribution right:
Here is first sale doctrine:
Note that section 109 uses the word "owner" -- the one who controls title. The law makes a distinction between owning a CD (as plastic), and owning the music or software on that CD (as bits). In order to invoke first sale doctrine, you have to own the copy of the software, or be authorized. Now let's have a look at a typical MSFT EULA:
There are some who argue that software licenses are effectively sales. I tend to agree, because MSFT no longer controls the software. However, with 'activation' and other 'phone home' software, this may not really be the case. If MSFT exerts control over my PC from Redmond, then they have a legitimate claim that I'm 'just a terminal'.
Here is the reproduction right:
Here is the fair use doctrine, 17 U.S.C. 107:
No, kids in the developing world need food, medicine, and a place to live where they aren't shot by their own government. They don't need computers. They probably don't even want computers, or any other "newest technology".
I am all for cheap computers, and I'm all for educating children in developing nations, but I don't think the two really mesh well.
There seems to be some confusion over what, exactly, the position entails. I know this is /., and I know people like to jump to conclusions, but get the facts! Look at how the office of Technology Administration fits into the overall Commerce org chart. You see what he's not? (Undersecretary for Intellectual Property) Then read the list of offices controlled by the Technology Undersecretary.
They RF'ed our cannon! Those poor, dumb bastards at MIT have no idea what they've done. Now how are all the poor frosh going to know that rotation is over? They'll be left to fend for themselves! We might lose up to 10% in the first wave alone. And finals will never end, so no one will graduate! This is a disaster!
You can find out who represents you here. If they hear from a lot of people, they will get a theoretical warm fuzzy knowing that the issue is important to their constituency, and that they're doing the right thing. More importantly, they'll get a very down-to-earth political message, that if they don't vote for this thing it could be their ass in the elections coming up in November.
Just to clarify.
That's sort of the opposite of the point. The point is that there is an exception to copyright explicitly allowing libraries to distribute copyrighted materials in the last 20 years of their statutory period (absent certain exceptions, like the work is still 'making someone money'). This provision was a compromise in a recent copyright term extension law. The way you stated the law, it sounded like libraries had this right already and the law was taking it away.
Becoming a lawyer? Practising law requires the same analytical abilities that you need for CS, but lawyers also write a lot. And we need more lawyers to advocate for peaceful, productive uses of technology, since there are a lot of people up on Capitol Hill trying to stifle creativity and free communication just to make a buck.
They Live. Screenshot.
For anyone trying to track down the report by the (first) President's Commission: the ISBN number is 0394469941. To find it at a local library, check out this site.
That's a great idea. Oh wait, no, that idea sucks. Just because something has value, doesn't mean that you should have to pay anything for it. By that logic, if you're using Linux for no cost, you should hurry up and pay Linus Torvalds and a couple of thousand of his friends, because you're obviously ripping them off. Oh yeah, you like to breathe the air and sit in the sun, don't you? Better pay God and His buddies at whatever church you go to, or they might take it all away.
This whole argument is academic anyway. As soon as one provider starts charging for email, another one will realize they can get a lot of business by not charging for it, and making money in other ways (like ads). Compare cable TV to broadcast TV. Free email is here to stay.
Given an alternative between buying the DVD and going to a theater, a person will choose what option gives them the best value for their money (external factors such as marketing bias aside). Home viewing of DVDs is more cost-effective in the long run, due to the high overhead of food sales at theaters and the ability to view the movie multiple times for one fixed cost.
What do theaters lose when DVDs are offered soon after the movie release? People will choose DVD over theater, and the theaters will go under. Even if theaters do manage to provide a better viewing experience (cell phones, sticky floors, and babies crying are clear detriments), they can't compete with a slightly worse product that costs a lot less.
What do studios gain by offering DVDs quickly? They don't have to split profits with anyone, and they don't have to deal with third party theaters cutting into their profits by showing ads. What's more, studios could stop releasing film altogether, and provide only straight-to-home-viewing-device products, eliminating theaters entirely. With the current state of technology, this may happen anyway, as more and more theaters become bankrupt.
Do you have any solid evidence to support your last statement? To my knowledge, there have never been any scientific case studies on the effect of a lack of copyright on mass-market creativity, because copyright law is not a variable which can be clinically controlled. Anglo-American history has had author copyrights for almost three hundred years now -- I don't know how one would even attempt such a study. Merely polling artists is insufficient, since there are too many uncontrollable variables to consider. And although the Framers obviously thought copyright important enough to include in the Constitution, it is only a suggested method of promoting progress. Government grants and subsidies are another; in my opinion, the NEA has significantly promoted the arts. Congress clearly has the power to enact laws supporting these systems already, without invoking clause 8. And although the regimes are different, I could also make a nearly identical argument for patents.
Have you ever met matter that didn't produce a gravitational force? Theoretically, any matter that moves creates changes in the local curvature of spacetime that propagate (i.e., gravity waves). The 'novel' aspect of this is the interaction between electromagnetism and gravity. Although, if you read Einstein's work directly, he predicted just this sort of relationship. It falls naturally out of the field equations.
In that case, let me be the first to smack you. *SMACK*