You must not open any lawyer magazines. The Texas Bar Journal (a monthly publication) has dozens of disbarments, suspensions, and censures every month. Here is June's (PDF).
What I find interesting about this is that Kozinski is one of the main "feeder judges" for the US Supreme Court. Along with Richard Posner, a great many of his clerks go clerk for SCOTUS justices afterward, and that job is one of the most prestigious jobs in the legal community (i.e., $300K signing bonuses after you clerk for the Supreme Court with the most prestigious firms in the country).
Basically what I'm saying is that Kozinski is a superstar in the legal community. This is why it's truly funny. It's probably the closest we'll ever come to a judicial sex tape.;)
As for Rowling v. RDR Books, IMO, an idea only becomes culture AFTER it is given to the public. And you CAN'T copyright an IDEA. Making cultural references to an idea aren't piracy, and not even plagiarism, it is literature in its absolute meaning.
Apparently, the author of the encyclopedia actually lifted 90% of his book directly from the HP series. Like, cut and pasted.
Trademark, not copyright. Here. I don't really care about the merits of T-Mobile's claims, but there is Supreme Court precedent saying that a color can be trademarked in certain narrow circumstances (the alleged holder must show "secondary meaning"--basically, that customers associate the color with the brand). Recall that trademark traditionally (and arguably still mostly) is geared towards alleviating customer confusion. In that light, such a trademark might make sense (again, not saying it does in T-Mobile's case, as I don't know anything about it).
The link you gave me appears to set up the argument:
IF no war in Iraq THEN more money for education.
My argument was:
IF (IF no kids THEN no pay) THEN poor people pay more.
Beyond that, education is typically funded by property taxes in the US (that is, taxes NOT levied by the Federal government), and the Federal Government doesn't spend much on edumacation.
Thus, if people could evade paying local property taxes that fund education, it would, if anything, INCREASE the amount of money that could be spent on the Iraq war.
Please clarify how the above quote of Obama's exhorts us to give up all personal gain forever and ever.
Because you've implied he does, and I, as a native English speaker, just don't see it in the quote.
Of course you are interested in us arriving at Truth, so naturally you will repond logically to my inquiry, rather than again using three words as if they constitute a convincing argument.
Someone else recording the performance would not be a derivative of Prince's recording.
However, his performance of the song itself is copyrighted if fixed in a tangible medium. Seeing as how there was a recording crew there, it was fixed in a tangible medium. So if you make a recording of a concert that already has the professional recording crew there, you are making a copy of the performance. Not a derivative work, but an actual copy (unless you cut parts out or employ your own artistically minimal innovation; in that case, you've created a derivative work).
This is similar to how, if you improv a song and you have an employee/contractor videotape the performance, there is a copyright in the song, and if someone else recorded your performance, they're infringing upon your copyright. If you hadn't videotaped the improvisation, you'd have no copyright in it.
Lemma one: when you make a derivative work, you hold no copyright in the original material, but any new artistic contribution you've made is copyrighted to you (provided it's fixed in a tangible form, yada yada).
With that lemma in mind, by recording his own performance of a Radiohead song, he's generated a derivative work. Radiohead holds copyright in the original composition, but Prince holds copyright in his own audio portion itself. Because it has been fixed in a tangible form by his recording crew, it's been fixed and thus is copyrighted. FOr simplicity's sake, I'm ignoring the fact that recording a concert means the person has created an audiovisual work that is subject to copyright.
Therefore, if someone else taped the performance, they'd be infringing upon his newly-generated copyright.
Summation: 1. Radiohead has copyright over the composition. 2. Prince can pay a statutory, mechanical license to record his performance of the Radiohead song. 3. By recording (and thereby fixing) his performance, he's created a copyrighted derivative work. 4. If someone else records that same performance, they're infringing Prince's copyright over his derivative work (and possibly the audiovisual work as a whole).
Apologies; a typo made it look like I'm assuming you're pro-choice and I didn't mean to characterize you as such. Obviously I don't know one way or the other.
I meant that pro-lifers would view one as not properly informed unless the person was also pro-life.
With all due respect, Obama didn't sit down with Ayers last year to plan out proper presidential policy. Obama did with Lessig.
And I agree with your contention that people who are not informed are dangerous members of the electorate. However, I don't share your view that only "properly informed people" (whatever that standard is I don't know) should be allowed to vote.
Recall that pro-life voters think you're not properly informed, so be hesitant to declare certain people "uninformed." One is not omniscient.
But Obama is a buddy of Lawrence Lessig. I don't think we could have a better candidate for the Free Culture movement (of which FLOSS is a subset) right now. Except I think there may be some guy from MIT who is in the House. Not sure about that, though.
We will soon be coming to real countries for help.:)
Um, I think you reversed the : and ). That is, unless you want your country to be in dire need. If so, are you aware of the old Robot saying: "DOES NOT COMPUTE"?
I don't know about a statement in support of XLOPQFLOSS, but I do know that he's a colleage and friend of Lawrence Lessig, and Obama sat down with Lessig before declaring his candidacy to discuss tech and internet policy.
Lessig endorses him wholeheartedly (you could cynically say it's because he wants a SCOTUS appointment), and from what I've read on Lessig's blog, Obama agrees with much of Lessig's tech/internet policy.
And as Lessig is my hero ("hero" is not the right word, but "role model" doesn't suffice), that's enough for me.
I really suggest your read 17 USC 1101 to see that the person can still get in trouble, even though Prince doesn't have a copyright if he didn't fix the work in a tangible form:
Anyone who, without the consent of the performer or performers involved . . . transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance . . . shall be subject to the remedies provided in sections 502 through 505, to the same extent as an infringer of copyright.
if I buy a used video game 0% of that is going to the original makers of it
No, but 100% of what you paid goes towards the seller buying another video game, potentially from the same creator (i.e., when I sell a used game, I use the money to buy another game)
Commandment 8: "Bearing false witness" = libel and slander
Commandment 3: "remember the Sabbath and keep it holy" = blue laws that are still on the books in some counties (i.e., shops can't do business on Sundays) -- blue laws were found Constitutional by the US Supreme Court in 1961; as recent as 2006, blue laws in TX were upheld
The problem I have with your idea is that it requires the consumer to read the contract/license agreement in the store and make a legal decision, rather than having the luxury of making the legal decision in the comfort of their own home. In other words, your preferred way would require the consumer to make a legal decision under more pressure.
In fact, this could lead to more cancellations of agreement under the concept of duress (high pressure sales). Although I'll be honest: I don't know the law on duress brought on by third parties to an agreement.
And before you say that the company could make the license agreement available online so the consumer could read it before going to make the purchase, this could also be applied to the current EULA situation (and I think many companies actually do provide EULAs online now--quick googles of "dell eula" and "microsoft eula" reveal a few, e.g.).
Yes, the first sale doctrine is law (it's in 17 USC for those who care), but contracts and agreements present the opportunity for the parties to the instrument to waive certain rights.
For example: using an object that employs someone else's patent is infringement, but if they give you a license to use the patent, then they have waived the right to sue you (even though 35 USC gives them the right to sue you for it were it not for the license).
Similarly, the purchaser has the right of resale under the first sale doctrine. However, if the purchaser promises not to resell software, then it is bound by that promise.
Now, as I admitted, I didn't RTFA. If Mr Vernor never agreed to the license, then he should prevail as the doctrine of first sale still applies. I do believe that is why he won this case, no?
I just spoke out because I saw what I thought was a lot of arguments throughout this discussion that did not hold legal water or whose implications were severe for other tangential cases (such as GPL software, because remember that the "L" there stands for license).
See, I really disagree with this, as it basically implies that "any contract you ever sign is bullshit."
Where did I say that?
You said it right here (assume that the license says you cannot transfer software):
Preventing someone from using it just because they are not the original owner of it is contrary to the first-sale doctrine.
Still, I'll be honest: my response was partially targeted at you, and partially because I was getting frustrated at the constant blubbering and complaining about what the law is when it makes perfect sense: you sign an agreement, you are bound to the agreement (less a few exceptions such as unconscionability).
Did you miss the paragraph about the EULA explicitly stating "You may permanently transfer all of your rights and obligations..."?
I clearly stated I didn't RTFA. However, not all EULAs give this right. In fact, there are plenty that do not.
Regarding returning the software if you don't agree:
...return. It's not the law
I wasn't aware you were such an authority on what the law was. Considering that you freely admitted that:
[you] don't know where exactly the law stands on this yet.
I'd cite you the case law that says otherwise, but since this is licensing law we're talking about, that's 50 states' worth of case law I'd have to cite.
Basically, it comes down like this: the agreement is finalized when the consumer accepts or rejects the license agreement. This is similar to a long history of contracts and licenses being taken care of via post mail; clickwrap and shrinkwrap licenses are not new constructions. I'll have to email one of my classmates: his seminar paper was written analyzing clickwrap, browsewrap, and shrinkwrap licenses. Clickwrap and shrinkwrap licenses are actually pretty uncontroversial in the legal world. Browsewrap is more contentious than the other two. I could post some of his discussion perhaps.
In any case, until you click "accept," the deal is not finalized, and you have the right to go to the other licensor and demand your money back. The licensor has to give it to you. If not, they have committed theft.
They are unconscionable, primarily because they are not presented until after the sale is complete and attempt to impose conditions and restrictions that were not agreed upon at the time of the sale.
The requirements you're implying should be imposed on contract and licensing law with these statements are staggering. You're basically demanding that all agreements be completely performed in person simultaneously or else they are unconscionable.
You're saying that stores should be required to show the licenses to potential licensees before they purchase software. Do you know how frigging unworkable that is? Good lord, almost every freaking consumer product you buy now has licenses included. Can you imagine Christmastime, stores full of people trying to read agreeements before they can buy. It's even worse then, because if they're in a hurry, they can either (1) wait hours to read and buy, or (2) buy and absolutely and irrevocably waive their right to refuse the agreement later. Hell, the current regime still permits post-purchase refusal and refund, but what you're suggesting would make it worse for the average consumer.
Finally, the time of the sale is not the end of the license formation process, and it does not have to be. Again, how do you think people in faraway lands have done business for decades? By mailing contracts back and forth, and including partial performance as part of the deal. You buying the software is partial performance of the agreement. Later, when you click "agree," that's the rest of the performance. The agreement is not finalized until you've fully performed. It's basic, black-letter contract law.
Slashdot Mirror
In Korea, isn't Natalie Portman only for old people?
You must not open any lawyer magazines. The Texas Bar Journal (a monthly publication) has dozens of disbarments, suspensions, and censures every month. Here is June's (PDF).
What I find interesting about this is that Kozinski is one of the main "feeder judges" for the US Supreme Court. Along with Richard Posner, a great many of his clerks go clerk for SCOTUS justices afterward, and that job is one of the most prestigious jobs in the legal community (i.e., $300K signing bonuses after you clerk for the Supreme Court with the most prestigious firms in the country).
;)
Basically what I'm saying is that Kozinski is a superstar in the legal community. This is why it's truly funny. It's probably the closest we'll ever come to a judicial sex tape.
EWWW
You can't call that "not piracy."
Trademark, not copyright. Here. I don't really care about the merits of T-Mobile's claims, but there is Supreme Court precedent saying that a color can be trademarked in certain narrow circumstances (the alleged holder must show "secondary meaning"--basically, that customers associate the color with the brand). Recall that trademark traditionally (and arguably still mostly) is geared towards alleviating customer confusion. In that light, such a trademark might make sense (again, not saying it does in T-Mobile's case, as I don't know anything about it).
See Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159 (1994) for illumination. I disagreed with the concept until I studied the case in IP Law. Now I'm neutral.
The link you gave me appears to set up the argument:
IF no war in Iraq THEN more money for education.
My argument was:
IF (IF no kids THEN no pay) THEN poor people pay more.
Beyond that, education is typically funded by property taxes in the US (that is, taxes NOT levied by the Federal government), and the Federal Government doesn't spend much on edumacation.
Thus, if people could evade paying local property taxes that fund education, it would, if anything, INCREASE the amount of money that could be spent on the Iraq war.
That's the point. If people who didn't have kids could evade, poor people would have to pay even more.
Please clarify how the above quote of Obama's exhorts us to give up all personal gain forever and ever.
Because you've implied he does, and I, as a native English speaker, just don't see it in the quote.
Of course you are interested in us arriving at Truth, so naturally you will repond logically to my inquiry, rather than again using three words as if they constitute a convincing argument.
This is similar to how, if you improv a song and you have an employee/contractor videotape the performance, there is a copyright in the song, and if someone else recorded your performance, they're infringing upon your copyright. If you hadn't videotaped the improvisation, you'd have no copyright in it.
Lemma one: when you make a derivative work, you hold no copyright in the original material, but any new artistic contribution you've made is copyrighted to you (provided it's fixed in a tangible form, yada yada).
With that lemma in mind, by recording his own performance of a Radiohead song, he's generated a derivative work. Radiohead holds copyright in the original composition, but Prince holds copyright in his own audio portion itself. Because it has been fixed in a tangible form by his recording crew, it's been fixed and thus is copyrighted. FOr simplicity's sake, I'm ignoring the fact that recording a concert means the person has created an audiovisual work that is subject to copyright.
Therefore, if someone else taped the performance, they'd be infringing upon his newly-generated copyright.
Summation:
1. Radiohead has copyright over the composition.
2. Prince can pay a statutory, mechanical license to record his performance of the Radiohead song.
3. By recording (and thereby fixing) his performance, he's created a copyrighted derivative work.
4. If someone else records that same performance, they're infringing Prince's copyright over his derivative work (and possibly the audiovisual work as a whole).
Apologies; a typo made it look like I'm assuming you're pro-choice and I didn't mean to characterize you as such. Obviously I don't know one way or the other.
I meant that pro-lifers would view one as not properly informed unless the person was also pro-life.
With all due respect, Obama didn't sit down with Ayers last year to plan out proper presidential policy. Obama did with Lessig.
And I agree with your contention that people who are not informed are dangerous members of the electorate. However, I don't share your view that only "properly informed people" (whatever that standard is I don't know) should be allowed to vote.
Recall that pro-life voters think you're not properly informed, so be hesitant to declare certain people "uninformed." One is not omniscient.
But Obama is a buddy of Lawrence Lessig. I don't think we could have a better candidate for the Free Culture movement (of which FLOSS is a subset) right now. Except I think there may be some guy from MIT who is in the House. Not sure about that, though.
I don't know about a statement in support of XLOPQFLOSS, but I do know that he's a colleage and friend of Lawrence Lessig, and Obama sat down with Lessig before declaring his candidacy to discuss tech and internet policy.
Lessig endorses him wholeheartedly (you could cynically say it's because he wants a SCOTUS appointment), and from what I've read on Lessig's blog, Obama agrees with much of Lessig's tech/internet policy.
And as Lessig is my hero ("hero" is not the right word, but "role model" doesn't suffice), that's enough for me.
Did you forget that after he got his diploma he spent some years as a community organizer? That clearly jives with his speech.
What you quoted doesn't say "make no money, ever." It says "volunteer your time instead of focusing only on money."
I see no disconnect in anything but you and your failure to grasp simple logic.
Wait...Kennedy's and Johnson's Vietnam War was "doing ok"?!?
Just so you know, in your sig, "Pho" is pronounced like the "fu" in "funny," not rhymed with "foe."
Prince had a professional recording crew there, fixing his performance in a tangible medium.
You forgot two others:
Commandment 8: "Bearing false witness" = libel and slander
Commandment 3: "remember the Sabbath and keep it holy" = blue laws that are still on the books in some counties (i.e., shops can't do business on Sundays) -- blue laws were found Constitutional by the US Supreme Court in 1961; as recent as 2006, blue laws in TX were upheld
The problem I have with your idea is that it requires the consumer to read the contract/license agreement in the store and make a legal decision, rather than having the luxury of making the legal decision in the comfort of their own home. In other words, your preferred way would require the consumer to make a legal decision under more pressure.
In fact, this could lead to more cancellations of agreement under the concept of duress (high pressure sales). Although I'll be honest: I don't know the law on duress brought on by third parties to an agreement.
And before you say that the company could make the license agreement available online so the consumer could read it before going to make the purchase, this could also be applied to the current EULA situation (and I think many companies actually do provide EULAs online now--quick googles of "dell eula" and "microsoft eula" reveal a few, e.g.).
Yes, the first sale doctrine is law (it's in 17 USC for those who care), but contracts and agreements present the opportunity for the parties to the instrument to waive certain rights.
For example: using an object that employs someone else's patent is infringement, but if they give you a license to use the patent, then they have waived the right to sue you (even though 35 USC gives them the right to sue you for it were it not for the license).
Similarly, the purchaser has the right of resale under the first sale doctrine. However, if the purchaser promises not to resell software, then it is bound by that promise.
Now, as I admitted, I didn't RTFA. If Mr Vernor never agreed to the license, then he should prevail as the doctrine of first sale still applies. I do believe that is why he won this case, no?
I just spoke out because I saw what I thought was a lot of arguments throughout this discussion that did not hold legal water or whose implications were severe for other tangential cases (such as GPL software, because remember that the "L" there stands for license).
You said it right here (assume that the license says you cannot transfer software):
Still, I'll be honest: my response was partially targeted at you, and partially because I was getting frustrated at the constant blubbering and complaining about what the law is when it makes perfect sense: you sign an agreement, you are bound to the agreement (less a few exceptions such as unconscionability).
I clearly stated I didn't RTFA. However, not all EULAs give this right. In fact, there are plenty that do not.
Regarding returning the software if you don't agree:
I wasn't aware you were such an authority on what the law was. Considering that you freely admitted that:
I'd cite you the case law that says otherwise, but since this is licensing law we're talking about, that's 50 states' worth of case law I'd have to cite.
Basically, it comes down like this: the agreement is finalized when the consumer accepts or rejects the license agreement. This is similar to a long history of contracts and licenses being taken care of via post mail; clickwrap and shrinkwrap licenses are not new constructions. I'll have to email one of my classmates: his seminar paper was written analyzing clickwrap, browsewrap, and shrinkwrap licenses. Clickwrap and shrinkwrap licenses are actually pretty uncontroversial in the legal world. Browsewrap is more contentious than the other two. I could post some of his discussion perhaps.
In any case, until you click "accept," the deal is not finalized, and you have the right to go to the other licensor and demand your money back. The licensor has to give it to you. If not, they have committed theft.
The requirements you're implying should be imposed on contract and licensing law with these statements are staggering. You're basically demanding that all agreements be completely performed in person simultaneously or else they are unconscionable.
You're saying that stores should be required to show the licenses to potential licensees before they purchase software. Do you know how frigging unworkable that is? Good lord, almost every freaking consumer product you buy now has licenses included. Can you imagine Christmastime, stores full of people trying to read agreeements before they can buy. It's even worse then, because if they're in a hurry, they can either (1) wait hours to read and buy, or (2) buy and absolutely and irrevocably waive their right to refuse the agreement later. Hell, the current regime still permits post-purchase refusal and refund, but what you're suggesting would make it worse for the average consumer.
Finally, the time of the sale is not the end of the license formation process, and it does not have to be. Again, how do you think people in faraway lands have done business for decades? By mailing contracts back and forth, and including partial performance as part of the deal. You buying the software is partial performance of the agreement. Later, when you click "agree," that's the rest of the performance. The agreement is not finalized until you've fully performed. It's basic, black-letter contract law.