True, but the implications of "The United States, as [a] sovereign, 'is immune from suit save as it consents to be sued... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit,'" is particularly frightening language to me.
I'm no lawyer, but I read that as, "We're the government, we can't be sued except when we want to be sued and even then we'll define the conditions of the jurisdiction in which our lawsuit will take place as it suits us," (so to speak).
Not exactly a government by the people for the people.
It may be unsettling, but it's not a recent development. It's been around since probably the 13th century.
The law doesn't care about your re-definitions of terms that are already defined in the law. Have you ever seen someone charged with theft for downloading an MP3? Hell no. You know why? Because it's not theft.
Mind you, I think that copyright (aka "patent") law is a crock of shit
Did you just knowingly conflate two completely different titles in the US Code?
You are not depriving the owner of property, but you are wrongfully gaining.
Then it's not theft. End of story. It's black-letter law that you MUST deprive someone of property in order for it to be "theft."
It's not right for you to steal, because you're screwing the seller out of the royalties they could have gotten from you had you paid for them fair and square.
First, we've already gone over this: it's not stealing. Read the law.
And as for screwing the seller out of potential (recall that not everyone who infringes is a lost sale) royalties, sure, I'll give you that. But just because someone's income is a little less doesn't mean you legally stole from them. "Copyright infringement" as a term of legal art exists because we need a legal term for what people are doing. "Theft" doesn't cover it because it's not "theft." The mere existence of the term "copyright infringement" is proof that it's not "theft," because otherwise the law would just call it theft.
And if you think copyright or patent laws are a "crock of shit," you would do well to educate yourself and fight the laws without making crap up. It makes you look like a fool, wastes everyone's time, and hurts the copyfighters' cause.
No civil consequences, perhaps (as you must have standing to sue). There are still international criminal consequences. You don't need standing to sue when you're prosecuting someone for crimes against humanity.
Maybe, maybe not. The law in many contexts has something called constructivism. For example, lowering someone's salary by 90% would be called "constructive termination." If you're a landlord and you allow a complex to go to shit, you have "constructively evicted" your tenants, and if they move out or stop paying, you'd lose a lawsuit because you as the landlord breached the agreement first, not them.
I think (although, as a law student, what I think has very little experience to back it up) this sort of thing might be a "constructive" First Amendment violation. There's a famous Supreme Court case in which, after the Supreme Court had already held that banning the burning of the US flag as a political statement was a violation of the First Amendment right to free speech.
Right after that, Congress passed a law banning burning the US flag because it was a threat to public safety (which is a permitted reason for violating free speech--see the "shouting fire in a crowded theater" case).
The Supreme Court responded that they clearly were clearly passing this law to violate free speech and not to actually protect the public from fires. Despite evidence to the contrary in the cases listed below, I'm too lazy go actually look for this case, but I'm pretty sure that this happened relatively the way I described.
The Supreme Court may not have used the phrase "constructive abridgement of the First Amendment right to free speech," but they most likely could have, because that's basically what they held.
In this case, I would almost wager that it (1) does alter the right of free speech as much as saying "when you make a speech, it has to be in Spanish so fewer people can understand you," and (2) that it's a constructive abridgement of the freedom of speech. To get away with it, I think the government would have to cloak the legislation very thickly in discussion and evidence that their goal is to eliminate corruption and unfair influence of money on elections, as opposed to "hushing up monied interests."
In support, the courts have permitted some campaign finance reform before, but I've not read those Supreme Court cases. I would bet, though, that the Court argued something a little related to your argument: that limiting political donations to campaigns is not targeting free speech, but rather targeting something else and affecting free speech merely incidentally.
Prohibition of such conduct would not abridge the constitutional liberty since such activity bears no necessary relationship to the freedom [of speech].
Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981)
[The] practical effect of the San Diego ordinance is to eliminate the billboard as an effective medium of communication. [Thus, it is necessary to assess] the "substantiality of the governmental interests asserted" and "whether those interests could be served by means that would be less intrusive on activity protexted by the First Amendment."
This is referred to by my First Amendment casebook as "content-neutral restrictions." Check out cases like United States v. O'Brien, 391 U.S. 367 (1968) (upholding a law banning the burning of draft cards because it strongly hindered administration of the draft, as opposed to striking down the law as an abridgement of the freedom of speech). This case established the four-step "O'Brien test" that is used by the Supreme Court to judge abridgements of speech:
regulation must be within the government's power
further an important or substantial government interest
that interest must be unrelated to the suppression of speech
prohibit no more speech than is essential to further that interest
That might violate the First Amendment. However, an alternate soution is to vote for people who refuse to take money from lobbyists. See the Change Congress movement, started (??) by our pal Larry Lessig.
Seeing as how politicians are typically short-term planners nowadays, note that the US is, nearly forty years later, still the only country to have placed a man on the moon.
Now conclude that, on a short-term basis, no other country is likely to discover whatever NASA has discovered (amino acids necessary for RNA, anyone?).
Now conclude that short-term planning politicians will decide not to inform the public based on their judgment regarding the short-term risk of another nation replicating NASA's discovery (AMINO ACIDS NECESSARY FOR RNA, ANYONE?).
air travel is theoretically optional, but a basic necessity of modern living
Wow, are you really that out of touch? Were it not for my mom's trip to Louisiana with my dad on his business trip, she would have, as of now, never ever flown on an airplane in *cough*fiftysomething*cough* years.
As it stands, I've only flown on an airplane to Japan for study abroad, and one can hardly suggest that is a common activity amongst Americans.
The University of Texas has free screenings of movies in their student union's movie theater every Wednesday (first run) and Thursday (non-first run).
I saw all three Lord of the Rings films there, two on first run (Wednesdays) and one on a Thursday inght after I'd seen it in a regular theater before going to college a year earlier.
I also saw A Mighty Wind for free on first run there. I also saw Pirates of the Caribbean: Curse of the Black Pearl on first run there.
I'm not saying that this is feasible for all unis. However, I'm just trying to show that there are options that compete with screeners (in fact, I saw some of these movies before screeners were available).
According to the law, those individuals who deprive artists of the fruits of the artist's labor commit an act called "theft".
No, according to the law, they commit an act called "copyright infringement." It has never legally been theft in all the years of the common law's existence.
The typical common law definition of theft requires "intent to permanently deprive the owner or the person with rightful possession of that property or its use."
Seeing as how making a copy does not deprive you of your copyright, it's not theft.
Losing an argument in a district court in Duluth, Minnesota, can't be helpful to his career.
Ray, could you explain this? As someone who has one more year of law school, I'm very interested in things to avoid doing that would screw up my career.
Is it because losing in Duluth implies that you're "not even good enough to win in a podunk town"?
When you play a song at twice normal speed you alter the pitch, tempo and harmonic content; it's musical characteristics. It is no longer the exact original, but since it couldn't exist except fot the original, it could be a derivative work.
This seems to cut through your argument (I think it was you, but I apologize if it was someone else) that creating/possessing/distributing compressed music (for which you do not own the original copyright) is not copyright infringement.
If you did not say this, then we have no quarrel, as I've found you to be pretty damn informed and eloquent regarding copyright law
The dangers of electing entertainers to public office
Yes, and the dangers of electing any human being to office is that he will move to protect his interests, even unconsciously.
Look at most of the lawyers, doctors, businesspeople, veterans, etc., on Capitol Hill.
Hell, if you elected a plumber he'd probably try to strengthen unions to protect plumbers' interests.
And, to be fair, Sonny Bono was the Representative for part of southern California in an area you'd better frigging believe is populated by a multitude of actors and so forth. His district is right by Los Angeles. But he still proposed ridiculous copyright laws.
I'm not endorsing this, but the argument goes that authors created under the understanding that Congress has extended copyright in the past and when they did it was retroactive; therefore, when authors created, it was under a social contract that agreed that further extensions of copyright would be retroactive.
If I buy an audio tape and make a copy of it at twice the speed, is this a derivative work or a copy? Just curious, because I don't think a rational, educated-in-the-law person would argue that it's a non-infringing work.
It has to be either a derivative work or a copy.
And whatever your answer may be, I don't see how performing a mathematical or mechanical algorithm to compress audio data is any different than performing a mathematical or mechanical algorithm to make a song play at twice the speed.
You can't copyright short strings of information. Period. You can't copyright sentences (unless they're really long), you can't copyright a combination of five notes of music, and you can't copyright a three-step choreography.
But somehow the fact that the same wavelength might be used for three different things didn't obviate copyright laws once we had FM radio?
Copyright law isn't concerned with short strings of information, and it is black letter law that short bits of information cannot be copyrighted (or very easily fall under fair use if you're literally just making a copy of some larger, copyrighted work). This is why choreographies are copyrightable, but I cannot copyright a 3-move dance step.
Thus, your argument about 13 bits of data means nothing. However, 5 MILLION bits of information that show up in two different places bears a strong likelihood of copying (not independent creation). There are, after all, 2^(5,000,000) combinations of that many bits.
Waving your arms around and throwing out buzzwords about "digital context" and "analog world" doesn't make your arguments any stronger.
I'm not asking you to give up the fight. I'm partially on your side (although I don't demand a complete rewrite of copyright laws for the digital age, as I think that's a recipe for the RIAA and MPAA to gain victories).
However, it is axiomatic that to speak intelligently about a subject one must first be intelligent regarding the subject.
A transcoding is not a "copy." It bears no relation whatever to the sound or video recording alleged to be infringed. At most the misleading title is a trademark violation.
Just stop. Please, just stop. A transcoding doesn't have to be a copy to infringe upon copyright. The Copyright Act has laws that state derivative works are also infringing material. 17 USC 101 defines "derivative work" as
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.
The bullshit you spread helps us lose the arguments by making us look like fools instead of coming up with better arguments.
Read 17 USC (protip: it's free and online in multiple places; here's one) and then come back and argue with the RIAA. Until then, you're not going to help one bit: If you teach a man to fish, he eats for a lifetime. If you teach a man a lie about fishing, he will starve.
I don't care about the usage of "dying." However, "nail in the coffin" refers to placing a corpse (that is, someone already dead) in a coffin and nailing it shut.
Thus, the implication by saying child pornography was the nail in the coffin of USENET is that USENET has already died, been placed in a coffin, and been completely nailed inside.
Slashdot Mirror
It may be unsettling, but it's not a recent development. It's been around since probably the 13th century.
The law doesn't care about your re-definitions of terms that are already defined in the law. Have you ever seen someone charged with theft for downloading an MP3? Hell no. You know why? Because it's not theft.
Did you just knowingly conflate two completely different titles in the US Code?
Then it's not theft. End of story. It's black-letter law that you MUST deprive someone of property in order for it to be "theft."
First, we've already gone over this: it's not stealing. Read the law.
And as for screwing the seller out of potential (recall that not everyone who infringes is a lost sale) royalties, sure, I'll give you that. But just because someone's income is a little less doesn't mean you legally stole from them. "Copyright infringement" as a term of legal art exists because we need a legal term for what people are doing. "Theft" doesn't cover it because it's not "theft." The mere existence of the term "copyright infringement" is proof that it's not "theft," because otherwise the law would just call it theft.
And if you think copyright or patent laws are a "crock of shit," you would do well to educate yourself and fight the laws without making crap up. It makes you look like a fool, wastes everyone's time, and hurts the copyfighters' cause.
No civil consequences, perhaps (as you must have standing to sue). There are still international criminal consequences. You don't need standing to sue when you're prosecuting someone for crimes against humanity.
Maybe, maybe not. The law in many contexts has something called constructivism. For example, lowering someone's salary by 90% would be called "constructive termination." If you're a landlord and you allow a complex to go to shit, you have "constructively evicted" your tenants, and if they move out or stop paying, you'd lose a lawsuit because you as the landlord breached the agreement first, not them.
I think (although, as a law student, what I think has very little experience to back it up) this sort of thing might be a "constructive" First Amendment violation. There's a famous Supreme Court case in which, after the Supreme Court had already held that banning the burning of the US flag as a political statement was a violation of the First Amendment right to free speech.
Right after that, Congress passed a law banning burning the US flag because it was a threat to public safety (which is a permitted reason for violating free speech--see the "shouting fire in a crowded theater" case).
The Supreme Court responded that they clearly were clearly passing this law to violate free speech and not to actually protect the public from fires. Despite evidence to the contrary in the cases listed below, I'm too lazy go actually look for this case, but I'm pretty sure that this happened relatively the way I described.
The Supreme Court may not have used the phrase "constructive abridgement of the First Amendment right to free speech," but they most likely could have, because that's basically what they held.
In this case, I would almost wager that it (1) does alter the right of free speech as much as saying "when you make a speech, it has to be in Spanish so fewer people can understand you," and (2) that it's a constructive abridgement of the freedom of speech. To get away with it, I think the government would have to cloak the legislation very thickly in discussion and evidence that their goal is to eliminate corruption and unfair influence of money on elections, as opposed to "hushing up monied interests."
In support, the courts have permitted some campaign finance reform before, but I've not read those Supreme Court cases. I would bet, though, that the Court argued something a little related to your argument: that limiting political donations to campaigns is not targeting free speech, but rather targeting something else and affecting free speech merely incidentally.
This sort of ruling shows up in Schneider v. State, 308 U.S. 147 (1939)
Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981)
This is referred to by my First Amendment casebook as "content-neutral restrictions." Check out cases like United States v. O'Brien, 391 U.S. 367 (1968) (upholding a law banning the burning of draft cards because it strongly hindered administration of the draft, as opposed to striking down the law as an abridgement of the freedom of speech). This case established the four-step "O'Brien test" that is used by the Supreme Court to judge abridgements of speech:
That might violate the First Amendment. However, an alternate soution is to vote for people who refuse to take money from lobbyists. See the Change Congress movement, started (??) by our pal Larry Lessig.
Indeed, one of the largest lobbying groups in the United States is a group of retirees.
Seeing as how politicians are typically short-term planners nowadays, note that the US is, nearly forty years later, still the only country to have placed a man on the moon.
Now conclude that, on a short-term basis, no other country is likely to discover whatever NASA has discovered (amino acids necessary for RNA, anyone?).
Now conclude that short-term planning politicians will decide not to inform the public based on their judgment regarding the short-term risk of another nation replicating NASA's discovery (AMINO ACIDS NECESSARY FOR RNA, ANYONE?).
Wow, are you really that out of touch? Were it not for my mom's trip to Louisiana with my dad on his business trip, she would have, as of now, never ever flown on an airplane in *cough*fiftysomething*cough* years.
As it stands, I've only flown on an airplane to Japan for study abroad, and one can hardly suggest that is a common activity amongst Americans.
Truly a good solution: bloodshed because you don't like your contract. Have you been President before?
The University of Texas has free screenings of movies in their student union's movie theater every Wednesday (first run) and Thursday (non-first run).
I saw all three Lord of the Rings films there, two on first run (Wednesdays) and one on a Thursday inght after I'd seen it in a regular theater before going to college a year earlier.
I also saw A Mighty Wind for free on first run there. I also saw Pirates of the Caribbean: Curse of the Black Pearl on first run there.
I'm not saying that this is feasible for all unis. However, I'm just trying to show that there are options that compete with screeners (in fact, I saw some of these movies before screeners were available).
No, according to the law, they commit an act called "copyright infringement." It has never legally been theft in all the years of the common law's existence.
The typical common law definition of theft requires "intent to permanently deprive the owner or the person with rightful possession of that property or its use."
Seeing as how making a copy does not deprive you of your copyright, it's not theft.
Ray, could you explain this? As someone who has one more year of law school, I'm very interested in things to avoid doing that would screw up my career.
Is it because losing in Duluth implies that you're "not even good enough to win in a podunk town"?
And when you compress a CD track to an MP3, you are similarly, through psychoacoustic principles, altering its musical characteristics.
This seems to cut through your argument (I think it was you, but I apologize if it was someone else) that creating/possessing/distributing compressed music (for which you do not own the original copyright) is not copyright infringement.
If you did not say this, then we have no quarrel, as I've found you to be pretty damn informed and eloquent regarding copyright law
To be fair, "piracy" as meaning "copyright infringement" has been in use since 1701, well before the RIAA was created..
Care to share your amazing money making ways with Slashdot? How do you get money back from people because they spammed you?
Umm, and marketing on Viacom and Clear Channel stations, who own like a thousand percent of the cable and radio media markets?
I buy CDs at concerts. Now you know another person (after entrigant) who buys music.
Anecdotal evidence does not a logical argument make.
Yes, and the dangers of electing any human being to office is that he will move to protect his interests, even unconsciously.
Look at most of the lawyers, doctors, businesspeople, veterans, etc., on Capitol Hill.
Hell, if you elected a plumber he'd probably try to strengthen unions to protect plumbers' interests.
And, to be fair, Sonny Bono was the Representative for part of southern California in an area you'd better frigging believe is populated by a multitude of actors and so forth. His district is right by Los Angeles. But he still proposed ridiculous copyright laws.
I'm not endorsing this, but the argument goes that authors created under the understanding that Congress has extended copyright in the past and when they did it was retroactive; therefore, when authors created, it was under a social contract that agreed that further extensions of copyright would be retroactive.
If I buy an audio tape and make a copy of it at twice the speed, is this a derivative work or a copy? Just curious, because I don't think a rational, educated-in-the-law person would argue that it's a non-infringing work.
It has to be either a derivative work or a copy.
And whatever your answer may be, I don't see how performing a mathematical or mechanical algorithm to compress audio data is any different than performing a mathematical or mechanical algorithm to make a song play at twice the speed.
You can't copyright short strings of information. Period. You can't copyright sentences (unless they're really long), you can't copyright a combination of five notes of music, and you can't copyright a three-step choreography.
But somehow the fact that the same wavelength might be used for three different things didn't obviate copyright laws once we had FM radio?
Copyright law isn't concerned with short strings of information, and it is black letter law that short bits of information cannot be copyrighted (or very easily fall under fair use if you're literally just making a copy of some larger, copyrighted work). This is why choreographies are copyrightable, but I cannot copyright a 3-move dance step.
Thus, your argument about 13 bits of data means nothing. However, 5 MILLION bits of information that show up in two different places bears a strong likelihood of copying (not independent creation). There are, after all, 2^(5,000,000) combinations of that many bits.
Waving your arms around and throwing out buzzwords about "digital context" and "analog world" doesn't make your arguments any stronger.
I'm not asking you to give up the fight. I'm partially on your side (although I don't demand a complete rewrite of copyright laws for the digital age, as I think that's a recipe for the RIAA and MPAA to gain victories).
However, it is axiomatic that to speak intelligently about a subject one must first be intelligent regarding the subject.
Just stop. Please, just stop. A transcoding doesn't have to be a copy to infringe upon copyright. The Copyright Act has laws that state derivative works are also infringing material. 17 USC 101 defines "derivative work" as
The bullshit you spread helps us lose the arguments by making us look like fools instead of coming up with better arguments.
Read 17 USC (protip: it's free and online in multiple places; here's one) and then come back and argue with the RIAA. Until then, you're not going to help one bit: If you teach a man to fish, he eats for a lifetime. If you teach a man a lie about fishing, he will starve.
I don't care about the usage of "dying." However, "nail in the coffin" refers to placing a corpse (that is, someone already dead) in a coffin and nailing it shut.
Thus, the implication by saying child pornography was the nail in the coffin of USENET is that USENET has already died, been placed in a coffin, and been completely nailed inside.
I'm going to say it authoritatively: yEnc killed USENET. ;)