She could claim damages in the form of lost wages, attorneys fees, and defamation of character.
Maybe she could, maybe she couldn't. The article did not mention any counterclaims. I do not recall if attorneys fees are available in a copyright infringement action. Even if she did make these claims, her attorney probably isn't getting a "percentage" as the parent claimed.
She could even petition everyone ever named in an RIAA lawsuit/extortion to join her in a class action lawsuit. Class action lawsuits usually rake in some classy cash moneys.
Well, maybe. But her attorney in this action surely wouldn't get a cut of that money, which was my original point.
With $24,000 you can buy a nice car or make a basic annual salary in US. The question is why people are not able to get sufficient counseling for that ammount?
Not because the lawyer "took" it, as the parent claimed.
How much would you be willing to spend to clear your name, to have an intelligent, skilled profressional spend countless hours advancing a cause that is very dear to you, not to him, and to handle the details of the ugliest, most unpleasant chapter in your life?
A lawyer who would have done the case for less money would not have been as good. If you want lawyers to be cheap, make law school cheaper, make malpractice insurance cheaper, make secretaries and paralegals cheaper, make legal research materials cheaper, make the court system simpler, make the laws better and less complicated, and make sure more smart people become lawyers so there will be more competition.
Highly unlikely. An attorney working on an hourly AND a contingency (percentage) fee is pretty rare. In addition, what would he get a percentage of? Even if she wins, she gets nothing. She's the defendant, not the plaintiff.
Unless copyright protections are pushed beyond the maximum feasible human lifespan I will eventually have *legal* access to all of the material for free.
No you won't. If we accept your assumption as true (that copyright protections don't already extend beyond lifespan), you will only eventually have free legal access to that material that came out on or before the day you were born or in the very best case, shortly therafter. What about material that comes out when you are 15? 20? 40? 60? 80? 100? You'll never get most of that for free.
Last time I checked there was no such thing as "conspiracy to violate copyrights" charge. ..
There IS such thing as vicarious infringment and contributory infringement.
If I were to know someone who wants to steal a car, and give him a flashlight, a screwdriver, a crowbar, and a ski mask, and give him a ride to a quiet parking lot at 3am, should may participation only be a civil issue?
I'm not saying I disagree with the notion that copyright infringment should, for the most part, be a civil issue, I'm just saying that if direct infringement is criminal, vicarious infringment probably ought to be criminal, too.
[T]he test of liability is very vague; I'm guessing that a court probably wouldn't find a P2P provider liable solely on the 'all relevant information...' bit
I disagree. I don't think a court would have any trouble applying this standard. The concept of charging a judge or jury to answer a question based on what a "reasonable person" would do or understand is very, very old and very, very common in American (and probably UK) law.
With regards to the "all relevant information" clause, to me that just means that that the judge or jury should attempt to put himself in the shoes of the person or company who is accused. Putting oneself in the shoes of the accused and considering "all relevant information" available to them at the time is another very common legal concept, used, for example, in negligence cases and in self-defense and defense-of-others matters to determine if someone's conduct was reasonable under the circumstances.
The second part is likely to prove more troublesome; on whether a P2P provider can profit and prove that they don't have to relay upon illegal file-sharing to do so.
I don't think this is a hard question, either, at least in the current P2P context where copyrighted material is so common. The profit thing doesn't have to be "proven" by anybody. At least in the civil context, it's a matter of which side made the most convincing argument - the preponderance of the evidence standard. I think somebody could probably make a good case that Kazaa would not be commercially viable without copyrighted material being shared.
I can think of two work-arounds; free/shareware programs that have no commercial purpose, no advertising, and don't make anybody money...
That would not be a work around, it would just make it a little more difficult to prove. The commercial viability thing is not a requirement, it's simply one way that a plaintiff could prove intent to induce infringement."
...or if a P2P partially sells out - works with The Man to help sell/exchange files - but still allows users to trade files on their own.
Would the Man really be willing to work with a P2P service that allowed users to trade files on their own? No.
As the owner of a whopping 100 shares of Red Hat stock I'll probably get another such letter. Is responding to it any more effective than responding to a spammer 'remove' address? All lawsuits should be 'opt-in'.
Yes, it is more effective, though probably pointless in this case. The opt-out letters are designed to protect people with legitimate greivances with the company who may not want accept whatever settlement the defendant company and the attorneys negotiate. If you send the required letter, you have sucessfully protected your right to sue the company yourself later, and waived your right to any settlement of the class action. It really does work.
But it's pointless for small shareholders if you have no intention whatsoever of suing the company yourself later, unless you don't want to participate in the settlement for other reasons.
Most lawsuits are opt-in, but class actions are the exception for a really good reason - to enable people and companies to get punished for hurting a whole lot of people in a small way without forcing someone to track down and hassle the millions of people with $1 in damages each.
...at least in theory. The system obviously has its disadvantages. I heard war stories in law school about firms that specialize in these types of shareholder derivative suits - it is indeed all about the money. At least the ambulance chasers actually seek compensation for an injury that someone noticed and cared about.
No, but simply sinding the word "at" would work fine. And "at" sent as the word "at" is still shorter than the new @. No one on the air is going to have any clue what the new Morse character is, anyway. I applaud their attempt to keep up with the times, though.
So in order to remove the argument that "Windows" cannot be considered a trademark, all MS should have to do is prove that it has name recognition in the general public. Once that is proven then the mark is distinctive rather than just descriptive, which falls into the realm of what is allowed to be trademarked.
That's not quite right. You have correctly stated the law for "descriptive" marks. Those can be registered upon showing of secondary meaning. But there is another category called "generic" marks. These marks are marks that are so descriptive that the mark itself names the class of good the mark is used for.
For example, "WATER" would be generic, and "CRYSTAL CLEAR WATER" would (possibly) be descriptive. Under US TM law, "CRYSTAL CLEAR WATER" could (possibly) be registered upon showing of secondary meaning, but "WATER" could not ever be registered because it is generic.
In the Lindows case, Lindows argues that "WINDOWS" is generic and is therefore not a valid TM even upon a showing of secondary meaning.
Ok, so this guy "invented" it, but anyone know any mroe history on it? I mean, is there a story beind?
I was lucky enough during my undergrad days to have taken an introductory EE course from Bradley; he was an adjunct at my university. He told the class the story - there's not much to it, really.
If I recall correctly, in the early days of the IBM PC Bradley worked with the team that wrote the BIOS. (or maybe he WAS the team that wrote the BIOS). At one point, somebody got sick and tired of having to do a hard shutdown whenever they wanted to reboot, so they asked Bradley to figure out a way to do a soft reset. He chose CTL-ALT-DEL because it was simply an obscure key combination that would not be hit by accident.
You say you're going to be lawyer, so here's something you should already know: the law is the most important source of information about the law.
Give me one more shot to make myself make sense. You need not respond, I know where you stand and respect your view.
The "law" consists of lots of things besides the "statute". On MOST occaisions, the "statute" is the most important source of information about "law", but there are several times when it is not. For example, the statute is usually only marginally helpful in determining its own purpose, and by definition it is not helpful in telling us about the law regarding something the statute doesn't address.
For those things, we have to look to other documents. For example, courts look to the Constitution, the various reports prepared by Congressional staff to help Congress in drafting the statutes, documents where Congress describes their intent, and interpretations of the statutes by various courts.
But, wait. You might think that these things are not important. The "statute" is the "law", right? And courts are bound to apply it as written, right? And if it isn't addressed in the statute, it's not the law, right? Well, not exactly. Courts routinely declare laws unenforceable as written because they are unconstitutional. They also refuse to enforce laws as written in situations where it would clearly offend the intent of the drafters of the law to do so. As you point out, the clear language of the statute is almost always determinative about the law. Courts will look beyond it if, for example, there is ambiguity in the statute or if enforcing one statute would offend the Constitution, another statute, or would do a gross injustice.
Enter SCO. Darl would probably reluctantly agree that there is nothing explicit in title 17 that would make the GPL unenforceable. His (flawed) argument is that enforcing the GPL would offend the purposes of the statute and the Constitutional authorization for copyright laws, which he argues is profit-centered, and would therefore do a gross injustice to SCO. Because of the gross injustice and unconstitutionality that woudl result, he goes on, title 17 should not be construed in a way that makes the GPL enforceable, even though on its face title 17 does not seem to have a problem with the GPL.
My point simply stated, again, is this: Darl used an argument about the purpose of the statute to say that the statute should not be enforced. Linus tried to use a portion of the statute that is, by its own text (see the preamble to sec. 101) inapplicable to determining the purpose of the statute to rebut that argument.
I would like to sincerely thank for engaging in this discussion. Most people brush off others they don't agree with or are offended by. You have been forceful and adament, which is much more fun. I'd be happy to continue it privately if you wish, jbrinson@law.gwu.edu, with the understanding that my own time contraints may get in the way, as will yours. Thanks, really.
It's all moot, really, because SCO will get laughed out of court when this is all over.
If the definitions do not apply outside of section 101, why does that section contain nothing but definitions?
Did you read my post? I never said that. That would be stupid. I said that section 101 applies only in the context of TITLE 17, of which section 101 is the first section.
The title of the chapter refers to the entire chapter, which does contain subject matter and scope of copyright. The placement of the definitions in that chapter is merely for convenience, it does not imply that somehow every defintion refers to the scope and subject matter of copyright.
The definition of financial gain was written around 1997 as part of the NET Act. The majority of title 17 was drafted over a number of years prior to 1976. It has been amended many times sense then. It was a revision of the 1909 copyright act that had been in effect, with amendments in the interim period, since the early part of last century.
So, you are wrong. The definitions were not drafted by the same people. Title 17 has the work of many many people in it beginning from the 1800's through the present day. It is important that the financial gain definition was not added until 1997. That lends it even less credibility to apply it outside of its specific uses in title 17.
And I have RTF Law. I've read most of title 17 word for word at least once, and many sections I have studied quite extensively. I have an exam on it tomorrow. You?
Further, the glossary analogy is off. A glossary defines terms used in a book both to show what they mean in the book and to educate the reader on the generally accepted meaning of the term. The defintions in a statute serve only the first function. To apply them outside of the statute is overreaching their scope.
If you don't believe me, RTF preamble to sec. 101 and note the use of the phrase "as used in this title".
[I]f another law or statute talks about "financial gain" with respect to copyright, you could legitimately argue that the copyright statute's definition is the one that should be used
You're looking at it the right way, but it's still off. Check the preamble to sec. 101:
"Except as otherwise provided in this title, as used in this title, the following terms and their variant forms mean the following:" (emphasis added).
So, the only place the definition means anything is within title 17. If "financial gain" is used anywhere else, it doesn't mean what this definition says.
Further, title 17 is definitely not *the* authority on copyright. The law on any subject consists of at least four distinct components:
1. the Constitution,
2. the various documents that show the intent of the drafters of the statutes,
3. the statutes,
4. and court cases interpreting 1, 2, and 3.
The weenie argument that Darl put forward was based on his crazy interpretation of 1, 2, and 4. If "financial gain" were found in any of those sources, the definition in sec. 101 would mean nothing, because sec. 101 specifically states those definitions mean nothing outside of title 17.
Darl relied on the broad purposes behind the statute to make his argument. Those purposes are not found in title 17, they are found in 1, 2, and 4. That's why the defintion in sec. 101 is inapplicable.
I know I am being an anal retentive, nitpicking SOB, and for that I am sorry. But I think it is a very important point. I was dismayed at how quickly the people on this site just kind of jumped right on to Linus's bandwagon without stoppping to really consider all the facts and do a thorough analysis of the law. One citation to one definition does not make a solid argument.
Thanks for reading and for your responses.
"Congress had the authority to define the definition for the purposes of copyright law, and that's the definition they chose."
When Congress defines a term in a statute, they define it only with respect to specific uses of that term in the statute. This term is only used in a few specific places to define the boundaries of criminal copyright infringement. You and Linus are interpreting the definition to apply much too broadly to the ideas behind copyright laws outside of the statute.
OK, in the absence of evidence, I guess we'll just believe that you're the legal eagle you think you are.
Why do I need to rebut Darl's argument in order to point out the flaws of Linus's argument?
This isn't the thread for rebutting SCO. I thought we were discussing what Linus said. Besides, there are dozens of good arguments against SCO all over slashdot.
I'm sorry for staying on topic... I'll never do it again.
I said: 'The fact that sec. 101 defines financial gain doesn't mean a anything outside of that very narrow context which is inapplicable to the discussion.'
You said: "That narrow context" is the whole of U.S. copyright law, which is the topic of this discussion.
That statement is dead wrong and rebutting it was the point of my original post and the core problem of Linus's argument.
Just because "financial gain" is defined in sec. 101 does not mean that definition applies to the whole of U.S. copyright law. You have to look at how "financial gain" is used (verbatim) in the text of Title 17 itself. Those provisions in which it is actually used provide the only context in which the definition has any force whatsoever.
What McBride is saying is that I, as the developer of software released under the GPL, do NOT have the right to authorize reproduction or distribution of my works, or derivatives of those works. By my (admittedly non-copyright attorney) reckoning, the GPL falls completely in line with US law.
I could not have said it better myself!
If you go further and look at case law on copyrights, you will find even more justification for "our" view and a better argument that SCO is full of it.
Case law makes it clear that the fundamental purpose of copyright is to promote invention. Compensation of authors is important to promote that end, but promoting invention and progress is always more important than compensation.
I wish I had the time now to give an exaustive list, but here is one Supreme Court case that is illustrative. Follow the link for the complete opinion.
"The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow access to the products of their genius after the limited period of exclusive control has expired." Sony Corp of America v. Universal City Studios 464 U.S. 417 (1984).
Such decisions fly squarely in the face of McBride's baseless assertion that voluntarily waiving copyright rights is somehow "wrong" because it thwarts the profit motive of copyright. Hogwash. Profit is not the motive for granting copyright protection.
Yes, he's making a rhetorical argument against Darl's interpretation, a rhetorical argument that DOESN'T WORK when you take the time to really analyze it.
I'm not feeding you bull just to make myself look good. I'm honestly concerned that such a prominent member of the Linux community (and really smart guy) came up with that bit of illogical propaganda. I have no delusions that critisizing the almighty Linus would make me popular or respected here.
I'm looking at this the way a judge would when asked to evaluate the merits of the argument. I really do know how to do that. I promise. I may not be able to hack my kernel, but I know Title 17 pretty well.
The fact is Linus is countering Darl's assertion using a provision of the copyright code that is inapplicable and, humorously, was only adopted recently as part of the NET Act to impose criminal liability on file swappers. See NET Act.
Darl's argument isn't inconsistent on this point because the definition of "financial gain" in sec. 101 is inapplicable to determining the purposes of copyright law.
There are some GREAT arguments out there that Darl and SCO are full of crap. Linus's just isn't one of them. It's just plain bad legal analysis that seems to make sense at first glance to the layperson.
Just thought everyone might be interested in knowing where the definition of "financial gain" came from in section 101.
I think Linus's reliance on the definition is misplaced; see my above post.
The term "financial gain" was defined as part of the No Electronic Theft (NET) Act in 1997. The purpose of the phrase "including the receipt of other copyrighted works" was to create criminal copyright liability for file swappers. Criminal charges for copyright infringement would otherwise only be applicable when the infringement was done for financial gain in the traditional sense of the term. By adding "including the receipt of other copyrighted works", Congress expanded criminal liability to include file swapping, not just the resale for cash of illegally copied works.
Section 101's definition of financial gain really has nothing to do with the underlying purpose of copyright law and certainly does not equate to "explicit encoding" of the idea into copyright law as Linus seems to think. (Not that McBride has any logical legs to stand on.)
> Linus is saying that - even by McBride's > standard - the GPL is fine, because of the > definition of financial is broader than McBride > thinks.
Of course that is what is was *trying* to do. I know that. You know that. We all know that. He messed up doing it, though.
The word "financial" in the McBride since has nothing to do with the term "financial gain" as defined in section 101 and used in title 17.
McBride says that financial gain is an underlying motive in our copyright scheme. Then Linus points to rarely invoked provision of the copyright code and says (paraphrasing) "See, look right here, financial gain for the purposes of copyright doesn't always mean money!"
His argument does not weaken McBride's pitiful argument one iota, because McBride claims to draw from sources outside of the code itself to determine the underlying purposes and motives for US copyright law. Any logical counter argument argument about an expansive definition of financial gain in the McBride sense would have to come from somewhere besides sec. 101 to really make any sense, unless the code itself uses financial gain to describe its purpose, which it doesn't.
...well, probably not, but he should stick to writing code, not about law. His understanding of the law is nearly as messed up as Darl's.
Whenever the law provides definitions, those definitions are valid ONLY WHEN THOSE TERMS ARE USED IN THE THE LAW ITSELF. The sec. 101 definition of financial gain therefore applies only to uses of the term "financial gain" in title 17. Linus's analysis would be correct if somewhere else the law said something like "Copyright law should be interpreted to promote financial gain." But it doesn't.
The only time "financial gain" is used in the copyright law (that I am aware of) is to show when certain copyright violations are elevated to criminal, as opposed to civil, wrongs. See http://www4.law.cornell.edu/uscode/17/506.html
The fact that sec. 101 defines financial gain doesn't mean a anything outside of that very narrow context which is inapplicable to the discussion.
Darl's "interpretation" is clearly bogus, of course. I won't get into why here, but I could tear apart his argument very easily. Anyone who knows anything about US copyright law got a good laugh from the screwed up analysis of both articles.
IANAL (I will be eventually, but that doesn't mean this is legal advice, it isn't)
Slashdot Mirror
She could claim damages in the form of lost wages, attorneys fees, and defamation of character.
Maybe she could, maybe she couldn't. The article did not mention any counterclaims. I do not recall if attorneys fees are available in a copyright infringement action. Even if she did make these claims, her attorney probably isn't getting a "percentage" as the parent claimed.
She could even petition everyone ever named in an RIAA lawsuit/extortion to join her in a class action lawsuit. Class action lawsuits usually rake in some classy cash moneys.
Well, maybe. But her attorney in this action surely wouldn't get a cut of that money, which was my original point.
With $24,000 you can buy a nice car or make a basic annual salary in US. The question is why people are not able to get sufficient counseling for that ammount?
Not because the lawyer "took" it, as the parent claimed.
How much would you be willing to spend to clear your name, to have an intelligent, skilled profressional spend countless hours advancing a cause that is very dear to you, not to him, and to handle the details of the ugliest, most unpleasant chapter in your life?
A lawyer who would have done the case for less money would not have been as good. If you want lawyers to be cheap, make law school cheaper, make malpractice insurance cheaper, make secretaries and paralegals cheaper, make legal research materials cheaper, make the court system simpler, make the laws better and less complicated, and make sure more smart people become lawyers so there will be more competition.
I bet he still gets a percentage if she wins.
Highly unlikely. An attorney working on an hourly AND a contingency (percentage) fee is pretty rare. In addition, what would he get a percentage of? Even if she wins, she gets nothing. She's the defendant, not the plaintiff.
Having taken $24000 off her and leaving her broke.
No, having provided a service for a fee that was agreed upon in advance. He didn't "take" anthing.
Unless copyright protections are pushed beyond the maximum feasible human lifespan I will eventually have *legal* access to all of the material for free.
No you won't. If we accept your assumption as true (that copyright protections don't already extend beyond lifespan), you will only eventually have free legal access to that material that came out on or before the day you were born or in the very best case, shortly therafter. What about material that comes out when you are 15? 20? 40? 60? 80? 100? You'll never get most of that for free.
Unless you plan on being buried with it.
Last time I checked there was no such thing as "conspiracy to violate copyrights" charge. . .
There IS such thing as vicarious infringment and contributory infringement.
If I were to know someone who wants to steal a car, and give him a flashlight, a screwdriver, a crowbar, and a ski mask, and give him a ride to a quiet parking lot at 3am, should may participation only be a civil issue?
I'm not saying I disagree with the notion that copyright infringment should, for the most part, be a civil issue, I'm just saying that if direct infringement is criminal, vicarious infringment probably ought to be criminal, too.
[T]he test of liability is very vague; I'm guessing that a court probably wouldn't find a P2P provider liable solely on the 'all relevant information...' bit
I disagree. I don't think a court would have any trouble applying this standard. The concept of charging a judge or jury to answer a question based on what a "reasonable person" would do or understand is very, very old and very, very common in American (and probably UK) law.
With regards to the "all relevant information" clause, to me that just means that that the judge or jury should attempt to put himself in the shoes of the person or company who is accused. Putting oneself in the shoes of the accused and considering "all relevant information" available to them at the time is another very common legal concept, used, for example, in negligence cases and in self-defense and defense-of-others matters to determine if someone's conduct was reasonable under the circumstances.
The second part is likely to prove more troublesome; on whether a P2P provider can profit and prove that they don't have to relay upon illegal file-sharing to do so.
I don't think this is a hard question, either, at least in the current P2P context where copyrighted material is so common. The profit thing doesn't have to be "proven" by anybody. At least in the civil context, it's a matter of which side made the most convincing argument - the preponderance of the evidence standard. I think somebody could probably make a good case that Kazaa would not be commercially viable without copyrighted material being shared.
I can think of two work-arounds; free/shareware programs that have no commercial purpose, no advertising, and don't make anybody money...
That would not be a work around, it would just make it a little more difficult to prove. The commercial viability thing is not a requirement, it's simply one way that a plaintiff could prove intent to induce infringement."
Would the Man really be willing to work with a P2P service that allowed users to trade files on their own? No.
Yes, it is more effective, though probably pointless in this case. The opt-out letters are designed to protect people with legitimate greivances with the company who may not want accept whatever settlement the defendant company and the attorneys negotiate. If you send the required letter, you have sucessfully protected your right to sue the company yourself later, and waived your right to any settlement of the class action. It really does work.
But it's pointless for small shareholders if you have no intention whatsoever of suing the company yourself later, unless you don't want to participate in the settlement for other reasons.
Most lawsuits are opt-in, but class actions are the exception for a really good reason - to enable people and companies to get punished for hurting a whole lot of people in a small way without forcing someone to track down and hassle the millions of people with $1 in damages each.
...at least in theory. The system obviously has its disadvantages. I heard war stories in law school about firms that specialize in these types of shareholder derivative suits - it is indeed all about the money. At least the ambulance chasers actually seek compensation for an injury that someone noticed and cared about.
A: dot dash
T: dash
AT: dot dash dash
W: dot dash dash
wouldn't work.
No, but simply sinding the word "at" would work fine. And "at" sent as the word "at" is still shorter than the new @. No one on the air is going to have any clue what the new Morse character is, anyway. I applaud their attempt to keep up with the times, though.
So in order to remove the argument that "Windows" cannot be considered a trademark, all MS should have to do is prove that it has name recognition in the general public. Once that is proven then the mark is distinctive rather than just descriptive, which falls into the realm of what is allowed to be trademarked.
That's not quite right. You have correctly stated the law for "descriptive" marks. Those can be registered upon showing of secondary meaning. But there is another category called "generic" marks. These marks are marks that are so descriptive that the mark itself names the class of good the mark is used for.
For example, "WATER" would be generic, and "CRYSTAL CLEAR WATER" would (possibly) be descriptive. Under US TM law, "CRYSTAL CLEAR WATER" could (possibly) be registered upon showing of secondary meaning, but "WATER" could not ever be registered because it is generic.
In the Lindows case, Lindows argues that "WINDOWS" is generic and is therefore not a valid TM even upon a showing of secondary meaning.
Ok, so this guy "invented" it, but anyone know any mroe history on it? I mean, is there a story beind?
I was lucky enough during my undergrad days to have taken an introductory EE course from Bradley; he was an adjunct at my university. He told the class the story - there's not much to it, really.
If I recall correctly, in the early days of the IBM PC Bradley worked with the team that wrote the BIOS. (or maybe he WAS the team that wrote the BIOS). At one point, somebody got sick and tired of having to do a hard shutdown whenever they wanted to reboot, so they asked Bradley to figure out a way to do a soft reset. He chose CTL-ALT-DEL because it was simply an obscure key combination that would not be hit by accident.
You say you're going to be lawyer, so here's something you should already know: the law is the most important source of information about the law.
Give me one more shot to make myself make sense. You need not respond, I know where you stand and respect your view.
The "law" consists of lots of things besides the "statute". On MOST occaisions, the "statute" is the most important source of information about "law", but there are several times when it is not. For example, the statute is usually only marginally helpful in determining its own purpose, and by definition it is not helpful in telling us about the law regarding something the statute doesn't address.
For those things, we have to look to other documents. For example, courts look to the Constitution, the various reports prepared by Congressional staff to help Congress in drafting the statutes, documents where Congress describes their intent, and interpretations of the statutes by various courts.
But, wait. You might think that these things are not important. The "statute" is the "law", right? And courts are bound to apply it as written, right? And if it isn't addressed in the statute, it's not the law, right? Well, not exactly. Courts routinely declare laws unenforceable as written because they are unconstitutional. They also refuse to enforce laws as written in situations where it would clearly offend the intent of the drafters of the law to do so. As you point out, the clear language of the statute is almost always determinative about the law. Courts will look beyond it if, for example, there is ambiguity in the statute or if enforcing one statute would offend the Constitution, another statute, or would do a gross injustice.
Enter SCO. Darl would probably reluctantly agree that there is nothing explicit in title 17 that would make the GPL unenforceable. His (flawed) argument is that enforcing the GPL would offend the purposes of the statute and the Constitutional authorization for copyright laws, which he argues is profit-centered, and would therefore do a gross injustice to SCO. Because of the gross injustice and unconstitutionality that woudl result, he goes on, title 17 should not be construed in a way that makes the GPL enforceable, even though on its face title 17 does not seem to have a problem with the GPL.
My point simply stated, again, is this: Darl used an argument about the purpose of the statute to say that the statute should not be enforced. Linus tried to use a portion of the statute that is, by its own text (see the preamble to sec. 101) inapplicable to determining the purpose of the statute to rebut that argument.
I would like to sincerely thank for engaging in this discussion. Most people brush off others they don't agree with or are offended by. You have been forceful and adament, which is much more fun. I'd be happy to continue it privately if you wish, jbrinson@law.gwu.edu, with the understanding that my own time contraints may get in the way, as will yours. Thanks, really.
It's all moot, really, because SCO will get laughed out of court when this is all over.
Thanks again.
If the definitions do not apply outside of section 101, why does that section contain nothing but definitions?
Did you read my post? I never said that. That would be stupid. I said that section 101 applies only in the context of TITLE 17, of which section 101 is the first section.
The title of the chapter refers to the entire chapter, which does contain subject matter and scope of copyright. The placement of the definitions in that chapter is merely for convenience, it does not imply that somehow every defintion refers to the scope and subject matter of copyright.
The definition of financial gain was written around 1997 as part of the NET Act. The majority of title 17 was drafted over a number of years prior to 1976. It has been amended many times sense then. It was a revision of the 1909 copyright act that had been in effect, with amendments in the interim period, since the early part of last century.
So, you are wrong. The definitions were not drafted by the same people. Title 17 has the work of many many people in it beginning from the 1800's through the present day. It is important that the financial gain definition was not added until 1997. That lends it even less credibility to apply it outside of its specific uses in title 17.
And I have RTF Law. I've read most of title 17 word for word at least once, and many sections I have studied quite extensively. I have an exam on it tomorrow. You?
Further, the glossary analogy is off. A glossary defines terms used in a book both to show what they mean in the book and to educate the reader on the generally accepted meaning of the term. The defintions in a statute serve only the first function. To apply them outside of the statute is overreaching their scope.
If you don't believe me, RTF preamble to sec. 101 and note the use of the phrase "as used in this title".
[I]f another law or statute talks about "financial gain" with respect to copyright, you could legitimately argue that the copyright statute's definition is the one that should be used
You're looking at it the right way, but it's still off. Check the preamble to sec. 101:
"Except as otherwise provided in this title, as used in this title, the following terms and their variant forms mean the following:" (emphasis added).
So, the only place the definition means anything is within title 17. If "financial gain" is used anywhere else, it doesn't mean what this definition says.
Further, title 17 is definitely not *the* authority on copyright. The law on any subject consists of at least four distinct components:
1. the Constitution,
2. the various documents that show the intent of the drafters of the statutes,
3. the statutes,
4. and court cases interpreting 1, 2, and 3.
The weenie argument that Darl put forward was based on his crazy interpretation of 1, 2, and 4. If "financial gain" were found in any of those sources, the definition in sec. 101 would mean nothing, because sec. 101 specifically states those definitions mean nothing outside of title 17.
Darl relied on the broad purposes behind the statute to make his argument. Those purposes are not found in title 17, they are found in 1, 2, and 4. That's why the defintion in sec. 101 is inapplicable.
I know I am being an anal retentive, nitpicking SOB, and for that I am sorry. But I think it is a very important point. I was dismayed at how quickly the people on this site just kind of jumped right on to Linus's bandwagon without stoppping to really consider all the facts and do a thorough analysis of the law. One citation to one definition does not make a solid argument. Thanks for reading and for your responses.
"Congress had the authority to define the definition for the purposes of copyright law, and that's the definition they chose."
When Congress defines a term in a statute, they define it only with respect to specific uses of that term in the statute. This term is only used in a few specific places to define the boundaries of criminal copyright infringement. You and Linus are interpreting the definition to apply much too broadly to the ideas behind copyright laws outside of the statute.
OK, in the absence of evidence, I guess we'll just believe that you're the legal eagle you think you are.
Why do I need to rebut Darl's argument in order to point out the flaws of Linus's argument?
This isn't the thread for rebutting SCO. I thought we were discussing what Linus said. Besides, there are dozens of good arguments against SCO all over slashdot.
I'm sorry for staying on topic... I'll never do it again.
I said:
'The fact that sec. 101 defines financial gain doesn't mean a anything outside of that very narrow context which is inapplicable to the discussion.'
You said:
"That narrow context" is the whole of U.S. copyright law, which is the topic of this discussion.
That statement is dead wrong and rebutting it was the point of my original post and the core problem of Linus's argument.
Just because "financial gain" is defined in sec. 101 does not mean that definition applies to the whole of U.S. copyright law. You have to look at how "financial gain" is used (verbatim) in the text of Title 17 itself. Those provisions in which it is actually used provide the only context in which the definition has any force whatsoever.
...and the poor dead horse takes another one.
What McBride is saying is that I, as the developer of software released under the GPL, do NOT have the right to authorize reproduction or distribution of my works, or derivatives of those works. By my (admittedly non-copyright attorney) reckoning, the GPL falls completely in line with US law.
I could not have said it better myself!
If you go further and look at case law on copyrights, you will find even more justification for "our" view and a better argument that SCO is full of it.
Case law makes it clear that the fundamental purpose of copyright is to promote invention. Compensation of authors is important to promote that end, but promoting invention and progress is always more important than compensation.
I wish I had the time now to give an exaustive list, but here is one Supreme Court case that is illustrative. Follow the link for the complete opinion.
"The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow access to the products of their genius after the limited period of exclusive control has expired." Sony Corp of America v. Universal City Studios 464 U.S. 417 (1984).
Such decisions fly squarely in the face of McBride's baseless assertion that voluntarily waiving copyright rights is somehow "wrong" because it thwarts the profit motive of copyright. Hogwash. Profit is not the motive for granting copyright protection.
Yes, he's making a rhetorical argument against Darl's interpretation, a rhetorical argument that DOESN'T WORK when you take the time to really analyze it.
I'm not feeding you bull just to make myself look good. I'm honestly concerned that such a prominent member of the Linux community (and really smart guy) came up with that bit of illogical propaganda. I have no delusions that critisizing the almighty Linus would make me popular or respected here.
I'm looking at this the way a judge would when asked to evaluate the merits of the argument. I really do know how to do that. I promise. I may not be able to hack my kernel, but I know Title 17 pretty well.
The fact is Linus is countering Darl's assertion using a provision of the copyright code that is inapplicable and, humorously, was only adopted recently as part of the NET Act to impose criminal liability on file swappers. See NET Act.
Darl's argument isn't inconsistent on this point because the definition of "financial gain" in sec. 101 is inapplicable to determining the purposes of copyright law.
There are some GREAT arguments out there that Darl and SCO are full of crap. Linus's just isn't one of them. It's just plain bad legal analysis that seems to make sense at first glance to the layperson.
Just thought everyone might be interested in knowing where the definition of "financial gain" came from in section 101.
I think Linus's reliance on the definition is misplaced; see my above post.
The term "financial gain" was defined as part of the No Electronic Theft (NET) Act in 1997. The purpose of the phrase "including the receipt of other copyrighted works" was to create criminal copyright liability for file swappers. Criminal charges for copyright infringement would otherwise only be applicable when the infringement was done for financial gain in the traditional sense of the term. By adding "including the receipt of other copyrighted works", Congress expanded criminal liability to include file swapping, not just the resale for cash of illegally copied works.
Section 101's definition of financial gain really has nothing to do with the underlying purpose of copyright law and certainly does not equate to "explicit encoding" of the idea into copyright law as Linus seems to think. (Not that McBride has any logical legs to stand on.)
See the text of the bill.
> Linus is saying that - even by McBride's
> standard - the GPL is fine, because of the
> definition of financial is broader than McBride
> thinks.
Of course that is what is was *trying* to do. I know that. You know that. We all know that. He messed up doing it, though.
The word "financial" in the McBride since has nothing to do with the term "financial gain" as defined in section 101 and used in title 17.
McBride says that financial gain is an underlying motive in our copyright scheme. Then Linus points to rarely invoked provision of the copyright code and says (paraphrasing) "See, look right here, financial gain for the purposes of copyright doesn't always mean money!"
His argument does not weaken McBride's pitiful argument one iota, because McBride claims to draw from sources outside of the code itself to determine the underlying purposes and motives for US copyright law. Any logical counter argument argument about an expansive definition of financial gain in the McBride sense would have to come from somewhere besides sec. 101 to really make any sense, unless the code itself uses financial gain to describe its purpose, which it doesn't.
...well, probably not, but he should stick to writing code, not about law. His understanding of the law is nearly as messed up as Darl's.
Whenever the law provides definitions, those definitions are valid ONLY WHEN THOSE TERMS ARE USED IN THE THE LAW ITSELF. The sec. 101 definition of financial gain therefore applies only to uses of the term "financial gain" in title 17. Linus's analysis would be correct if somewhere else the law said something like "Copyright law should be interpreted to promote financial gain." But it doesn't.
The only time "financial gain" is used in the copyright law (that I am aware of) is to show when certain copyright violations are elevated to criminal, as opposed to civil, wrongs. See http://www4.law.cornell.edu/uscode/17/506.html
The fact that sec. 101 defines financial gain doesn't mean a anything outside of that very narrow context which is inapplicable to the discussion.
Darl's "interpretation" is clearly bogus, of course. I won't get into why here, but I could tear apart his argument very easily. Anyone who knows anything about US copyright law got a good laugh from the screwed up analysis of both articles.
IANAL (I will be eventually, but that doesn't mean this is legal advice, it isn't)