Yeah, I always got a kick out of that "effective access control" provision. It's "effective" as long as it works when you use it the way we say you can use it. Hell, in that case, it's effective for them to say "please, don't copy this CD."
Actually, consideration does have to be something of value, although it could be an agreement or promise to perform some act. I can easily see how users receive consideration for their promise to abide by the TOS in the form of hosting services.
However, consideration must be mutual
I guess I was thinking of something as a tangible benefit when I said something received of value as opposed to the intangible that is a promise. As for mutuality of consideration, that is merely a requirement that both parties provide consideration, not that the consideration provided is fair to both parties. The hosting service receives a potential benefit by increasing the number of users of the service. It is up to them to transform that into an actual benefit, but that does not affect the validity of the consideration provided to them.
Further, the hosting service receives the benefit of being able to rely on the TOS should a user violate the terms and they wish to terminate that user's access. Without the TOS the user could make some sort of frivolous claim that the service was providing the service indefinitely because no terms were established. In that case it is clearly a benefit to have had the user's agreement to the TOS a priori.
Remember, consideration need not be realized. It may be simply the potential to realize a benefit. Think of options contracts.
Consideration does not have to be something received of value. It can be an agreement to do something that the contractor would not normally be bound to do. In this instance, the host agrees to provide hosting services and the user agrees to be bound by the TOS. Neither would normally be required to do either. That's mutuality of consideration and the contract shouldn't fail for lack of consideration.
1. With Linux entering mainstream, hardly anyone uses the command line for things like file management anymore. They use file managers like Konqueror and Nautilus.
Wait, wait, wait, time, time, cut, cut, cut. That's a fucking joke, right? None of the Linux or BSD users I know use file managers for file management, except perhaps mc. And, given your second observation, I don't see why anyone would need to.
There is a question whether a EULA relates to a sale of goods. If it does and the Uniform Commercial Code applies, then, perhaps, EULAs are considered as proposals for addition to the contract formed at the time of sale of the goods (i.e., the software) and become part of the contract unless rejected. SeeUCC 2-204 and UCC 2-207.
You, too, are making assumptions. Why is it called a flag? It is a flag because it is an option that can be on or off. NPR is under no obligation to set the flag on. Further, I made no such assumption that the RIAA owns everything. I was speaking with reference to material they have a right to control the distribution of. That would only be sound recordings owned by member organizations.
You're right that fair use encompasses the right to make recordings of broadcast programs. You're wrong to think that 112(7)(a) grants an individual any right to make phonorecords. 112 in its entirety is related to broadcasters and their rights to make phonorecords of protected sound recordings for use in their operations after payment of a statutory license fee. When analysing provisions of the Copyright Act it is always important to trace back any dependencies to fully understand what provisions apply to who in what context.
Actually, fair use was not established by the Copyright Act. It was established by judicial common law as a recognition that copyrights are limited grants of rights that cannot restrict the right of others to make use of copyrighted material. Copyright was originally intended to allow producers to realize some monetary gain from the sale of their work, not to control the use of their work in every conceivable situation. Hence, the fair use and first sale doctrines which clarify the rights of people who acquire a copyrighted work.
The question then becomes whether providing such a feature is contributory infringement (which I would hope the Sony decision has settled in the negative) or illegal provision of the means for circumventing a technological measure. This is the problem with the DMCA, it's overly broad and ill-considered.
Your legal rights include the right to make fair use of copyrighted materials. This right exists whether the material is analog or digital, purchased or broadcast. You don't need a license to the content to have a fair use right. The fair use right can also extend to making copies of entire works in the case of time-shifting broadcast content.
This would easily be fulfilled by plugging a jack into the headphone slot and recording the non-digital output to tape or via line-in on a computer and you'd still get better quality than any non-digital radio station that exists today.
I hate to play devil's advocate (ok, I lie, I love it, but I hate to do it for the RIAA) but it would seem that this would open you up to DMCA liability. The way I read the anticircumvention provisions this would be a "circumvent[ion of] a technological measure that effectively controls access to a work protected under" Title 17.
No licensable right? What about the rights granted by 17 U.S.C. 107(1),(3), and (6)? It would seem that the copyright holder or their representatibe would have the right to prevent unauthorized copying, distribution, and public performance by digital audio transmission. That's not to say this broadcast flag is the best way to protect those rights, but they certainly have those rights to protect.
Or tax-breaks for the rich, because you want to encourage people to get rich.
Please, tell me how this is supposed to work? Whether the top marginal rate is 33% or 38%, I'm going to want to make more money than I am now. That goes for the vast majority of people. Do you think that by telling someone you will tax them less if they make it into the top bracket they magically acquire the ability to earn income that would place them in that bracket? I think not.
I'm not sure that European companies are any more driven by customer concern than American companies, but the laws with which they must comply have been writing with the consumer in mind much more than the hodgepodge of American privacy laws. The European concept is more akin to a property right that can be non-transferrably licensed whereas the US view is that the corporation has a property right in whatever information they obtain and can do with it what they will.
Children so stupid they think America invented the Internet, computer, motor car, light bulb, telephone etc ad infinitum....
Aren't those all American inventions? (Okay, there may have been mechanical computers that weren't invented by Americans, but I take you to have meant the digital computer.) I agree with you 100% about the majority of Americans being stupid fucks though. And the scary part is that their votes count just as much as mine. Perhaps we need to license people to vote.
You missed the magic words "such as" right before your quoted passage. That is a non-exhaustive list which is given only by way of example. The real important questions are how the four factors listed in 107 apply to the use claimed to be "fair." Backups are generally personal, non-commercial use, made necessary by the nature of the work that have little or no impact on the market (unless you're the MPAA who thinks that it's their god-given right to create a market for repurchasing media you've already purchased at least once). The main problem is that backups, by their nature, are complete copies of the work. Though the Supreme Court has indicated that fair use does contemplate making complete copies in some circumstances, such as time-shifting television broadcasts.
It was 1976, and the Fair Use provision (17 U.S.C. 107) was a codification of judicial common law going back to the 19th century. You are right, however, that Congress can taketh away. As long as they are within the scope of their constitutionally granted powers, Congress can overide judicial common law by legislation. The problem with the DMCA, from my point of view at least, is that it exceeds the scope of the IP clause by granting rights for unlimited terms. There is no requirement that copy or access controls become disabled when the copyright expires and the work enters the public domain. There is also the problem that it is perfectly legal to use anticircumvention devices for circumventing copy and access controls for works in the public domain, but it is illegal to create and sell those devices because they could also be used to circumvent coy and access controls for works still protected by copyright.
Hopefully, the Supreme Court will get a good, solid challenge to the DMCA soon and will make good on its implied promise in Eldridge to strike down laws that extend an unlimited monopoly to copyright owners.
You forget, this is/. People see "patent" and panic. People rarely read the article or patent application. I'm not sure, but it looks like this might be the application they're referencing. United States Patent Application 20040081154: Internal BGP downloader. I tend to think like you do, Cisco sees this as something that is essential to the future of TCP as a viable standard and will not charge an arm and a leg for a license.
fair use allows for up to 10% of the original material to be copied
Your point about the fact that a certain type of question was asked not being an invented fact is well taken. Though I'm sure there are NDA type requirements for taking the test, the enforceability of which is probably suspect but sufficient to act as a threat against disclosure. I must take exception with your statement that fair use allows for copying of 10% of the original. I don't know where people get this from, it's simply nowhere in the statute or the caselaw. 17 U.S.C. 107(3) is the closest the Act gets to defining limits on the amount and it merely says that courts should consider "the amount and substantiality of the portion used in relation to the copyrighted work as a whole." Courts have interpreted this to mean that the entirety of a copyrighted work may be copied while remaining a fair use:
Moreover, when one considers the nature of a televised copyrighted audiovisual work, see 17 U.S.C. 107(2) (1982 ed.), and that time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact that the entire work is reproduced, see 107(3), does not have its ordinary effect of militating against a finding of fair use.
I never said a fair use defense wouldn't work. The original poster had said that the questions and answers weren't copyrightable. I was merely pointing out that they were. Copyrightability is merely one step in the infringement analysis. Next you'd have to ask if one of the 106 rights were exercised. If we're talking about people talking about the questions, that doesn't seem like reproduction or even distribution of a copy. That might change if, for example, the questions were posted online. Then it might be appropriate to look at 107 for a fair use defense.
The Copyright Act is very much procedural. If you don't satisfy the requirements of one step you can't get to the next. I was simply pointing out that any inquiry would have to go beyond the initial step as the 102(b) bar wouldn't stop the inquiry. The case I mentioned is directly on point for that proposition.
Slashdot Mirror
Yeah, I always got a kick out of that "effective access control" provision. It's "effective" as long as it works when you use it the way we say you can use it. Hell, in that case, it's effective for them to say "please, don't copy this CD."
However, consideration must be mutual
I guess I was thinking of something as a tangible benefit when I said something received of value as opposed to the intangible that is a promise. As for mutuality of consideration, that is merely a requirement that both parties provide consideration, not that the consideration provided is fair to both parties. The hosting service receives a potential benefit by increasing the number of users of the service. It is up to them to transform that into an actual benefit, but that does not affect the validity of the consideration provided to them.
Further, the hosting service receives the benefit of being able to rely on the TOS should a user violate the terms and they wish to terminate that user's access. Without the TOS the user could make some sort of frivolous claim that the service was providing the service indefinitely because no terms were established. In that case it is clearly a benefit to have had the user's agreement to the TOS a priori.
Remember, consideration need not be realized. It may be simply the potential to realize a benefit. Think of options contracts.
Consideration does not have to be something received of value. It can be an agreement to do something that the contractor would not normally be bound to do. In this instance, the host agrees to provide hosting services and the user agrees to be bound by the TOS. Neither would normally be required to do either. That's mutuality of consideration and the contract shouldn't fail for lack of consideration.
Eunuchs are the only thing I see coming out of SCO these days.
It's not as effective as 20 tons of lead and TNT.
Wait, wait, wait, time, time, cut, cut, cut. That's a fucking joke, right? None of the Linux or BSD users I know use file managers for file management, except perhaps mc. And, given your second observation, I don't see why anyone would need to.
There is a question whether a EULA relates to a sale of goods. If it does and the Uniform Commercial Code applies, then, perhaps, EULAs are considered as proposals for addition to the contract formed at the time of sale of the goods (i.e., the software) and become part of the contract unless rejected. See UCC 2-204 and UCC 2-207.
You, too, are making assumptions. Why is it called a flag? It is a flag because it is an option that can be on or off. NPR is under no obligation to set the flag on. Further, I made no such assumption that the RIAA owns everything. I was speaking with reference to material they have a right to control the distribution of. That would only be sound recordings owned by member organizations.
You're right that fair use encompasses the right to make recordings of broadcast programs. You're wrong to think that 112(7)(a) grants an individual any right to make phonorecords. 112 in its entirety is related to broadcasters and their rights to make phonorecords of protected sound recordings for use in their operations after payment of a statutory license fee. When analysing provisions of the Copyright Act it is always important to trace back any dependencies to fully understand what provisions apply to who in what context.
Actually, fair use was not established by the Copyright Act. It was established by judicial common law as a recognition that copyrights are limited grants of rights that cannot restrict the right of others to make use of copyrighted material. Copyright was originally intended to allow producers to realize some monetary gain from the sale of their work, not to control the use of their work in every conceivable situation. Hence, the fair use and first sale doctrines which clarify the rights of people who acquire a copyrighted work.
The question then becomes whether providing such a feature is contributory infringement (which I would hope the Sony decision has settled in the negative) or illegal provision of the means for circumventing a technological measure. This is the problem with the DMCA, it's overly broad and ill-considered.
Your legal rights include the right to make fair use of copyrighted materials. This right exists whether the material is analog or digital, purchased or broadcast. You don't need a license to the content to have a fair use right. The fair use right can also extend to making copies of entire works in the case of time-shifting broadcast content.
I hate to play devil's advocate (ok, I lie, I love it, but I hate to do it for the RIAA) but it would seem that this would open you up to DMCA liability. The way I read the anticircumvention provisions this would be a "circumvent[ion of] a technological measure that effectively controls access to a work protected under" Title 17.
No licensable right? What about the rights granted by 17 U.S.C. 107(1),(3), and (6)? It would seem that the copyright holder or their representatibe would have the right to prevent unauthorized copying, distribution, and public performance by digital audio transmission. That's not to say this broadcast flag is the best way to protect those rights, but they certainly have those rights to protect.
Fair use, meet the circular file. Circular file, meet fair use.
Please, tell me how this is supposed to work? Whether the top marginal rate is 33% or 38%, I'm going to want to make more money than I am now. That goes for the vast majority of people. Do you think that by telling someone you will tax them less if they make it into the top bracket they magically acquire the ability to earn income that would place them in that bracket? I think not.
I'm not sure that European companies are any more driven by customer concern than American companies, but the laws with which they must comply have been writing with the consumer in mind much more than the hodgepodge of American privacy laws. The European concept is more akin to a property right that can be non-transferrably licensed whereas the US view is that the corporation has a property right in whatever information they obtain and can do with it what they will.
Aren't those all American inventions? (Okay, there may have been mechanical computers that weren't invented by Americans, but I take you to have meant the digital computer.) I agree with you 100% about the majority of Americans being stupid fucks though. And the scary part is that their votes count just as much as mine. Perhaps we need to license people to vote.
as was Saddam when we were unhappy with Iran.
You missed the magic words "such as" right before your quoted passage. That is a non-exhaustive list which is given only by way of example. The real important questions are how the four factors listed in 107 apply to the use claimed to be "fair." Backups are generally personal, non-commercial use, made necessary by the nature of the work that have little or no impact on the market (unless you're the MPAA who thinks that it's their god-given right to create a market for repurchasing media you've already purchased at least once). The main problem is that backups, by their nature, are complete copies of the work. Though the Supreme Court has indicated that fair use does contemplate making complete copies in some circumstances, such as time-shifting television broadcasts.
Hopefully, the Supreme Court will get a good, solid challenge to the DMCA soon and will make good on its implied promise in Eldridge to strike down laws that extend an unlimited monopoly to copyright owners.
You forget, this is /. People see "patent" and panic. People rarely read the article or patent application. I'm not sure, but it looks like this might be the application they're referencing. United States Patent Application 20040081154: Internal BGP downloader. I tend to think like you do, Cisco sees this as something that is essential to the future of TCP as a viable standard and will not charge an arm and a leg for a license.
Am I the only one who thinks Godwin's law needs a new corrolary?
Your point about the fact that a certain type of question was asked not being an invented fact is well taken. Though I'm sure there are NDA type requirements for taking the test, the enforceability of which is probably suspect but sufficient to act as a threat against disclosure. I must take exception with your statement that fair use allows for copying of 10% of the original. I don't know where people get this from, it's simply nowhere in the statute or the caselaw. 17 U.S.C. 107(3) is the closest the Act gets to defining limits on the amount and it merely says that courts should consider "the amount and substantiality of the portion used in relation to the copyrighted work as a whole." Courts have interpreted this to mean that the entirety of a copyrighted work may be copied while remaining a fair use:
SONY CORP. v. UNIVERSAL CITY STUDIOS, INC., 464 U.S. 417, 449-50 (1984).The Copyright Act is very much procedural. If you don't satisfy the requirements of one step you can't get to the next. I was simply pointing out that any inquiry would have to go beyond the initial step as the 102(b) bar wouldn't stop the inquiry. The case I mentioned is directly on point for that proposition.