You're both right, in a way. GP's description is essentially accurate and once you've done that you've defamed someone. Truth is, however, a complete affirmative defense. It's much like how fair use was in the copyright sense before 1976. You'd say "sure, I did it, but you can't hold me responsible" because of this defense.
The funny thing is, I was talking with several FCC staffers a couple weeks ago and they all seemed to think that the lack of delineation between cable and broadcast militated in favor of broadcast deregulation rather than increased regulation for cable and satellite. The whole rationale for broadcast regulation going back to the 1934 Act is spectrum scarcity. That's not a problem with cable and satellite and is becoming more and more irrelevant to broadcast.
What's the solution? DON'T STEAL/PIRATE MOVIES/BOOKS/SOFTWARE/MUSIC/etc.! It's VERY simple to avoid being caught by these supposedly "unfair" laws!
And if there was a law prohibiting the discussion of anarchy would you simply say, "don't discuss anarchy?" The fact that you can avoid punishment by complying with the law does not change the fact that a law is unfair, arbitrary, and without a basis on which the government can claim the power to act. If I feel that a law is clearly unconstitutional I am going to act as though the law does not exist. If I am charged with violating that law then I have just bought myself the chance to convince a court of what I already believe.
if the government bothers to appeal, it's likely to lose on 4th and 14th amendment grounds.
I hate to nitpick (well, I don't really, but it's just one of those things you say right before you nitpick), but how would the 14th amendment get involved? This is a federal statute. Have there been EPC challenges to PATRIOT? I figured most would be due process challenges which, in the federal system, come under the 5th amendment. That said, I'd be very skeptical that the courts will be willing to excise the "evil" parts for us. Even in Caballes Souter and Ginsburg were careful to note that they would not want to impede the government's ability to use bomb-sniffing dogs to detect "terrorists." The courts, just like congress, are going to want to do everything they can to look like good patriots that aren't impeding the government's ability to do whatever it wants in pursuit of "national security."
W&M was my first choice school precisely because of their Bill of Rights journal, but they waitlisted me and UDSL offered a great scholarship, so here I am (but thankfully only for another three months and four days!).
You're right that there is more to it than TFA implies. I'm hoping to be able to argue that sniffing packets would be more like the thermal imaging used in Kyllo v. U.S. to detect marijuana growing. Sure, data coming out of a home's data connection is readily inspectable without physical intrusion into the home, especially if there is a wireless connection used, but that does not necessarily eliminate any expectation of privacy. Caballes is interesting because it holds that a search of such normally undetectable emanations isn't really a search if it's calculated to only alert to illegal activity. So the question becomes not whether I have an expectation of privacy in the data, but whether the investigators can tailor their search of the data to only respond to evidence of illegal activity. I'll probably attack the efficacy of any such system, highlighting false-negatives and false-positives, as was done in the Caballes dissent, but there's still the problem that the "privacy" of these communications is really a fiction to begin with.
Anyways, it should be an interesting article and, even if it isn't published in the Law Review, it should be posted on the Law and the Digital Frontier section of the school's cybercrimes website.
University of Dayton. The school is finally coming around to the realization that they need to have a Journal of Law and Technology if they want their Law and Tech program to remain well respected. It's just too bad they're trying to incorporate it with the regular Law Review.
If it's published it will be next spring in the Review's annual Law and Tech issue. As far as a working title, I don't really have one, but an apt description of the scope would be, as I said earlier, an examination of the expectation of privacy in data transmitted over publicly accessible networks.
Since it is not even in a law review journal, nobody in the legal field is going to pay an iota of attention to it, and no court will care about it.
Sorry to burst your bubble, but I've been working on a comment for a law review on just this very topic. I'll be looking a bit more broadly at expectations of privacy in communications over publicly accessible networks, but this is certainly a decision I will have to discuss. The thing about the Supreme Court is that they don't want to have to address every situation that can conceivably come before them. So, they will often speak in broad language when they feel it is appropriate to address a whole range of issues with a single decision. This may be of that type since they discuss the legitimacy of privacy interests in illegal activity and not just the interest of this person in the privacy of the contents of his trunk. That leads to the obvious question: well, then, what is the legitimacy of an expectation of privacy in electronic communications regarding illegal activity?
What, lawyers can't understand code? Please. I will graduate from law school in May and I am perfectly capable of understanding code. You see, before we can get in to law school, we have to get at least a bachelors degree. Some of us, like myself, have degrees in computer science. I may not be a regular contributor to the Linux kernel, but I am more than capable of parsing and understanding code. Granted, that won't always be the best use of my time as an attorney, but not every case is SCO v. IBM and not every case will require super secret code analysts from MIT.
You are right in that donative promises are generally not enforceable in court. However, there is a legal doctrine called "reliance."
Even more simply viewed, their "promise" would really be a license. An IP license is really nothing more than a covenant not to sue. As for mutuality of consideration, their license requires that all derivative works be released under the same license as well as contains some patent cross-licensing provisions (IIRC) which should certainly suffice as consideration. It doesn't fail for lack of consideration merely because it is being "given" to the community without any expectation of immediate reciprocation.
Yes! Celebrate! If they have made changes to the kernel they will have to release them and, hopefully, there will be something of benefit to other Linux audio projects in there. Even if they didn't make any changes, it is a major pro-audio component maker embracing Linux. We need more pro-audio software and hardware support for Linux. I hate it that I have to use Windoze to do postprocessing on recordings that I make, there's no reason Linux can't support VST plugins and (usable) low latency audio.
What gets me, though, is that he cited the DCMA on why they CAN'T subpoena.
Well, duh! The DMCA (and all of the Copyright Act for that matter) are just like the U.S. Constitution, they grant limited rights and powers. If a power is not explicitly granted by the statute, it is not available. Obviously, you must look to the DMCA to see if the DMCA grants the right to subpoena common carriers.
To clarify once again, copyright infringement is not a crime. Criminal copyright infringement is a crime. Criminal copyright infringement has requirements that are not present to prove copyright infringement. It's like saying "killing a person is a crime." No, murder is a crime, manslaughter is a crime. Homicide is not a crime without more.
As for "knowing infringment" (even though Section 506 speaks of "willfully" infringing), they must have actual knowledge. My memory of Religious Technology Center v. Netcom is that knowing infringement requires actual notice by the copyright holder and time to determine the validity of the copyright and the claim of infringement. It's not really enough that they have constructive notice, i.e., they should have known from the names of the torrents.
As for my blanket statement, sure I probably could have been a bit refined, but copyright infringement is not a crime, only willful copyright infringement for profit or in excess of certain numerical and monetary limits is a crime. I guess my frustration stems from the fact that infringement is so often labled "theft" that many people assume all infringement is criminal.
Perhaps I should have been a bit clearer in my statements. If what these sites are doing can be classified as infringement, not exactly a sure thing given the history of contributory/vicarious infringement caselaw, it is not criminal activity. Section 506 speaks of persons who "infringe[] a copyright willfully." Vicarious infringement is not infringement under Section 501, it is a judicial construction. Then you get to the willful infringment requirement. Even the DOJ has recognized the problems inherent in calling linking criminal copyright infringement:
One question for prosecutors will be how to address an individual who,
while not illegally offering the software on his or her site, establishes a
direct link to a "warez site" that is offering illegal software. While a target
who illegally offers copyrighted software on a "warez site" is engaging in
infringement, criminality is less clear if the copyrighted software is on another
site to which the target simply links.
In these instances, the facts surrounding the activity will be critical.
For example, is the target's "warez site" effectively encouraging the
infringement? Is there independent evidence, in addition to or aside from the
"warez site," which suggests intent to infringe? Is there evidence of some
illicit relationship between the target or the target's "warez site" and the site
containing the copyrighted work to be downloaded? Further, what if the target
links not to the beginning of the secondary site, but further or deeper into the
site, directly to the downloadable software? This is known as "deep linking,"
when the link bypasses initial portions of a Web site and takes the user to a
specific place within the targeted Web site. Prosecutors should consider the
relative culpability of an individual who links a user directly to a copyrighted
work and one who links the user to a site that offers the illegal software,
possibly in addition to other legal information or services.
Criminality requires knowing infringement, something hard to prove when distribution may occur prior to the site operator having any knowledge of the torrent being posted on their site. Second, I'm not aware of any case where a contributory infringer, as a torrent site must be if they infringe at all since they are not distributing the works directly, being charged with criminal infringement. Even in the Fonovisa case the swap meet operator who was certainly doing it knowingly, for profit, and in amounts in excess of the criminal threshold, there were only civil claims. That's not to say the DOJ can't try for a criminal conviction, but I think any judge in their right mind should be greatly concerned about such an attempt to extend 17 U.S.C. 506 to contributory infringers.
A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".
17 U.S.C. 101.
Torrents are not "derivative works" under the definition of copyright because they are not "works." Works include:
Works of authorship include the following categories:
(1)
literary works;
(2)
musical works, including any accompanying words;
(3)
dramatic works, including any accompanying music;
(4)
pantomimes and choreographic works;
(5)
pictorial, graphic, and sculptural works;
(6)
motion pictures and other audiovisual works;
(7)
sound recordings; and
(8)
architectural works.
17 U.S.C. 102(a).
A Cliff's Note is a derivative work. A card in a library's card catalog telling how many pages are in a book, etc. is not a derivative work. A torrent file is much more like a library card than a Cliff's Note. As for criminal copyright violation, that requires willful violation which can be very difficult to prove, especially when the violation may occur before the site owner knows that they may be facilitating a violation.
It was the 9th Circuit and, if the Supreme Court sticks to its prior jurisprudence it will uphold the decision. As for Napster 1.0, they had means to discontinue user accounts when they became aware of infringing content. If these sites allow anonymous posting or find a way to distribute the data store they can avoid the very narrow A&M v. Napster holding.
Re:hosting links isn't illegal
on
LokiTorrent vs. MPAA
·
· Score: 2, Informative
Copyright infringement is NOT A CRIME! It is a violation of a civil right. Furthermore, most torrent sites do nothing more than what Grokster et al. do, which has been held not to be contributory or vicarious infringement. If these sites are only allowing people to post information about links to torrents that provide information about how to obtain material that may or may not be copyrighted they are not vicarious infringers.
Distributing copyrighted materials without a license is not a criminal offense. It is a violation of a civil right that gives rise to a civil cause of action. And, as others have pointed out, these sites are not distributing copyrighted content, but links to information detailing ways to obtain copyrighted content, subtle difference, but nothing worse than what Grokster is doing and that has already been ruled not to be contributory infringement.
Close, lefties want the gov't keeping track of businesses and righties want laissez faire while lefties want the gov't out of personal matters and righties want the gov't to tell me what sexual positions are okay and when and where I have the freedom to be free from gov't imposed religion, etc. It's all about what kind of intervention you're talking about.
Slashdot Mirror
It's probably the lawyers' fault. For some reason a lot of them prefer Word Perfect.
You're both right, in a way. GP's description is essentially accurate and once you've done that you've defamed someone. Truth is, however, a complete affirmative defense. It's much like how fair use was in the copyright sense before 1976. You'd say "sure, I did it, but you can't hold me responsible" because of this defense.
The funny thing is, I was talking with several FCC staffers a couple weeks ago and they all seemed to think that the lack of delineation between cable and broadcast militated in favor of broadcast deregulation rather than increased regulation for cable and satellite. The whole rationale for broadcast regulation going back to the 1934 Act is spectrum scarcity. That's not a problem with cable and satellite and is becoming more and more irrelevant to broadcast.
And if there was a law prohibiting the discussion of anarchy would you simply say, "don't discuss anarchy?" The fact that you can avoid punishment by complying with the law does not change the fact that a law is unfair, arbitrary, and without a basis on which the government can claim the power to act. If I feel that a law is clearly unconstitutional I am going to act as though the law does not exist. If I am charged with violating that law then I have just bought myself the chance to convince a court of what I already believe.
I hate to nitpick (well, I don't really, but it's just one of those things you say right before you nitpick), but how would the 14th amendment get involved? This is a federal statute. Have there been EPC challenges to PATRIOT? I figured most would be due process challenges which, in the federal system, come under the 5th amendment. That said, I'd be very skeptical that the courts will be willing to excise the "evil" parts for us. Even in Caballes Souter and Ginsburg were careful to note that they would not want to impede the government's ability to use bomb-sniffing dogs to detect "terrorists." The courts, just like congress, are going to want to do everything they can to look like good patriots that aren't impeding the government's ability to do whatever it wants in pursuit of "national security."
You're right that there is more to it than TFA implies. I'm hoping to be able to argue that sniffing packets would be more like the thermal imaging used in Kyllo v. U.S. to detect marijuana growing. Sure, data coming out of a home's data connection is readily inspectable without physical intrusion into the home, especially if there is a wireless connection used, but that does not necessarily eliminate any expectation of privacy. Caballes is interesting because it holds that a search of such normally undetectable emanations isn't really a search if it's calculated to only alert to illegal activity. So the question becomes not whether I have an expectation of privacy in the data, but whether the investigators can tailor their search of the data to only respond to evidence of illegal activity. I'll probably attack the efficacy of any such system, highlighting false-negatives and false-positives, as was done in the Caballes dissent, but there's still the problem that the "privacy" of these communications is really a fiction to begin with.
Anyways, it should be an interesting article and, even if it isn't published in the Law Review, it should be posted on the Law and the Digital Frontier section of the school's cybercrimes website.
University of Dayton. The school is finally coming around to the realization that they need to have a Journal of Law and Technology if they want their Law and Tech program to remain well respected. It's just too bad they're trying to incorporate it with the regular Law Review.
If it's published it will be next spring in the Review's annual Law and Tech issue. As far as a working title, I don't really have one, but an apt description of the scope would be, as I said earlier, an examination of the expectation of privacy in data transmitted over publicly accessible networks.
Sorry to burst your bubble, but I've been working on a comment for a law review on just this very topic. I'll be looking a bit more broadly at expectations of privacy in communications over publicly accessible networks, but this is certainly a decision I will have to discuss. The thing about the Supreme Court is that they don't want to have to address every situation that can conceivably come before them. So, they will often speak in broad language when they feel it is appropriate to address a whole range of issues with a single decision. This may be of that type since they discuss the legitimacy of privacy interests in illegal activity and not just the interest of this person in the privacy of the contents of his trunk. That leads to the obvious question: well, then, what is the legitimacy of an expectation of privacy in electronic communications regarding illegal activity?
hmm, there may be use for the Evil Bit after all!
What, lawyers can't understand code? Please. I will graduate from law school in May and I am perfectly capable of understanding code. You see, before we can get in to law school, we have to get at least a bachelors degree. Some of us, like myself, have degrees in computer science. I may not be a regular contributor to the Linux kernel, but I am more than capable of parsing and understanding code. Granted, that won't always be the best use of my time as an attorney, but not every case is SCO v. IBM and not every case will require super secret code analysts from MIT.
Even more simply viewed, their "promise" would really be a license. An IP license is really nothing more than a covenant not to sue. As for mutuality of consideration, their license requires that all derivative works be released under the same license as well as contains some patent cross-licensing provisions (IIRC) which should certainly suffice as consideration. It doesn't fail for lack of consideration merely because it is being "given" to the community without any expectation of immediate reciprocation.
Yes! Celebrate! If they have made changes to the kernel they will have to release them and, hopefully, there will be something of benefit to other Linux audio projects in there. Even if they didn't make any changes, it is a major pro-audio component maker embracing Linux. We need more pro-audio software and hardware support for Linux. I hate it that I have to use Windoze to do postprocessing on recordings that I make, there's no reason Linux can't support VST plugins and (usable) low latency audio.
Religion not for profit?!? Can I have some of what you're smoking?
Well, duh! The DMCA (and all of the Copyright Act for that matter) are just like the U.S. Constitution, they grant limited rights and powers. If a power is not explicitly granted by the statute, it is not available. Obviously, you must look to the DMCA to see if the DMCA grants the right to subpoena common carriers.
To clarify once again, copyright infringement is not a crime. Criminal copyright infringement is a crime. Criminal copyright infringement has requirements that are not present to prove copyright infringement. It's like saying "killing a person is a crime." No, murder is a crime, manslaughter is a crime. Homicide is not a crime without more.
As for my blanket statement, sure I probably could have been a bit refined, but copyright infringement is not a crime, only willful copyright infringement for profit or in excess of certain numerical and monetary limits is a crime. I guess my frustration stems from the fact that infringement is so often labled "theft" that many people assume all infringement is criminal.
The simple fact that a site like LokiTorrents exists does not mean that they're necessarily infringing any copyrights, much less doing so criminally.
Criminality requires knowing infringement, something hard to prove when distribution may occur prior to the site operator having any knowledge of the torrent being posted on their site. Second, I'm not aware of any case where a contributory infringer, as a torrent site must be if they infringe at all since they are not distributing the works directly, being charged with criminal infringement. Even in the Fonovisa case the swap meet operator who was certainly doing it knowingly, for profit, and in amounts in excess of the criminal threshold, there were only civil claims. That's not to say the DOJ can't try for a criminal conviction, but I think any judge in their right mind should be greatly concerned about such an attempt to extend 17 U.S.C. 506 to contributory infringers.
Torrents are not "derivative works" under the definition of copyright because they are not "works." Works include:
17 U.S.C. 102(a).A Cliff's Note is a derivative work. A card in a library's card catalog telling how many pages are in a book, etc. is not a derivative work. A torrent file is much more like a library card than a Cliff's Note. As for criminal copyright violation, that requires willful violation which can be very difficult to prove, especially when the violation may occur before the site owner knows that they may be facilitating a violation.
It was the 9th Circuit and, if the Supreme Court sticks to its prior jurisprudence it will uphold the decision. As for Napster 1.0, they had means to discontinue user accounts when they became aware of infringing content. If these sites allow anonymous posting or find a way to distribute the data store they can avoid the very narrow A&M v. Napster holding.
Copyright infringement is NOT A CRIME! It is a violation of a civil right. Furthermore, most torrent sites do nothing more than what Grokster et al. do, which has been held not to be contributory or vicarious infringement. If these sites are only allowing people to post information about links to torrents that provide information about how to obtain material that may or may not be copyrighted they are not vicarious infringers.
Distributing copyrighted materials without a license is not a criminal offense. It is a violation of a civil right that gives rise to a civil cause of action. And, as others have pointed out, these sites are not distributing copyrighted content, but links to information detailing ways to obtain copyrighted content, subtle difference, but nothing worse than what Grokster is doing and that has already been ruled not to be contributory infringement.
Self-respecting Windows user?!? Now that's rich!
Close, lefties want the gov't keeping track of businesses and righties want laissez faire while lefties want the gov't out of personal matters and righties want the gov't to tell me what sexual positions are okay and when and where I have the freedom to be free from gov't imposed religion, etc. It's all about what kind of intervention you're talking about.