He's also confused how so many could ignore, or not appreciate, the satire. After describing one scene in which the player fights back a horde of military veterans turned to monsters by the United States, all of them under a banner reading, "Veterans Memorial," Smith asked, "how can you look at all these elements and not think this is super fucking subversive?"
The quote above strikes me as greatly amusing. Ham fisted satire is not exactly what I'd call subversive. This kind of statement seems like something an attention seeking high school student would come up with. It seems like something more subtle would also be more effective.
All being on the bar does is allow you to practice law in a courtroom. That is absolutely not true, at least in any jurisdiction with which I am familiar. For example, the Indiana Code prohibits "engag[ing] in the business of a practicing lawyer" in addition to "conduct[ing] the trial of a case in a court" and "profess[ing] to be a practicing attorney" IC 33-43-2-1. It is true that you can teach without passing the bar, but of the jobs you mentioned that's the only one.
There is a difference between a license and an agreement (contract). A license (in this case) grants you a form of property. Specifically, it grants you some property with restrictions on how that property may be used. It was historically first used of real property, but has been extended to other forms of property as well. For example, a ticket to a show is generally a license to a particular seat at a particular time with some additional restrictions on your conduct at that show. Software is often transferred with a license (whether that license be BSD, GPL, proprietary, etc.) which governs your exercise of property rights over that software.
A contract, by the common law formula, requires an offer, acceptance of that offer, and consideration for the agreement. There are exceptions to that formula, of course, but it generally holds true. "Consideration" means "payment" in broad terms. Consideration could be money, it could be the promise to perform a certain action or to withhold from performing a certain action.
There are limits as to what a contract or license can do, which gets to your point, I believe. For example, a statement which says "by reading this, you agree to give me all your money" is neither a license nor a contract. If included within a license or a contract it may or may not be enforceable depending on the circumstances. For example, if I have $4, and you agree to give me a book for "all my money", that's likely a reasonable contract. If I have millions of dollars, and you agree to give me the most valuable book in all the world for "all my money", that's also likely enforceable. If, on the other hand, you obtain my agreement by some trick (as in your example above of the book), it's likely not enforceable. I simply will not accept transfer of the book once I am aware of the terms of the license.
In other words, I think you are arguing against the wrong concept. There are such things as licenses, and you may well need one in order to convince someone to transfer some property right in a thing to you. I use GPL'd software under the conditions of its license, just the same as I use proprietary software. I didn't agree to the GPL, but I accept the software under the conditions of the license.
With all his antics, I think a disbarment is pretty much in the cards. The biggest question is, and I don't know enough about the process to know whether this could happen, if he can get accepted into the bar anyplace else. Disbarment is considered an extremely serious sanction -- it basically takes away a person's main livelihood, so it's good that it's a relatively slow and deliberative process. The argument, of course, is that a person's actions render him or her unfit to practice. Fraud against clients or the court are generally considered the most serious infractions. That said, it may well be warranted in this case.
As for being admitted someplace else, each state has different requirements, but all have some sort of ethics requirement. Being disbarred in one state is serious enough that it would likely be quite difficult to pass the ethics requirements of another state.
No, really it wasn't. The biggest problem they had was that they weren't selling a product wanted to buy, and that they weren't putting most of the money into making a compelling product. Most people are decent enough, but most people aren't sufficiently stupid to pay for an item that they don't value.
And yet, people go right on buying CDs and downloading this product which isn't wanted, according to you. They do this despite the (however remote) possibility of legal action against them. If people honestly didn't want the music the (companies which make up the) RIAA would be out of business already. They would have no income and no means to continue their day-to-day operations, let alone the lawsuits.
You can criticize their methods, but you can't honestly say they don't produce a product that at least some people want to buy. Perhaps you don't, and that's fine. But obviously many people do.
So... why don't they release a (traditional twitchtastic) X-Wing title? Tell it! I would love to see even X-Wing v Tie Fighter with updated gfx. Of course, adding prequel ships would be sweet, too.
I really don't want this to be the case that the community rallys around, because she clearly (in my mind) did what is claimed. I think this is a slam-dunk for a civil trial and I'd say it would have a pretty good chance even for criminal (if that were the case).
Yeah, I tend to agree from the evidence I've heard, but the jury instruction is what is really important to me. The best outcome might even be that the judge refuses to give the "making available" jury instruction. The RIAA wins the case, and then neither side appeals. That would let this defendant set an important president for the instruction, and keep it from being appealed. Just a thought...
Ars has had really good coverage on the whole trial -- one of their reporters has been there the whole time. I think there are a couple of things to keep in mind:
1) We don't know how it's going to turn out. I think the RIAA has actually done the best job they could do to present their case. They have strong circumstantial evidence that this particular defendant uses the Kazaa user name in question, and that she was likely the only person using the computer. The standard in a civil case is proof by a preponderance of the evidence. That is to say, that it's more likely than not that she did what is claimed. It doesn't have to be lock solid, or beyond a reasonable doubt. On the flip side, the defense has also done an excellent job controlling who gets to testify, and appears to have argued for good jury instructions. The most important thing to come from this case may well be the "making available" jury instruction, as that will likely be a major issue for future cases.
2) This is going to be appealed. If the defendant wins, the RIAA will appeal. They have to. If the RIAA wins, I imagine the defendant will appeal so long as she can afford it. As likely, both sides will have parts of the ruling that they're unhappy with, and they will cross-appeal. This decision won't end the case.
It's a very interesting and important case. I look forward to more developments.
From either of the linked articles, I have no idea what the objectionable content is. It sounds violent, but what FPS isn't? Can anyone provide more info?
This is the first Groklaw article I've read and if this hyperbole is typical of its offerings I'm amazed so many people listen to it. This is of the quality one would typically find in a slashdot rant. I thought groklaw was actually a well respected website.
I tend to agree with you. Another response to you claims that PJ's analysis is respected -- and that might be true of the people who agree with her opinion before she writes it. I think her analysis is sometimes correct, and sometimes not. I think you have to remember it's her blog -- she's not an attorney.
Obviously IANAL but I don't see how publishing a paper or a piece of source code showing how to circumvent a DRM protection does not fall under "free speech"
The paper or source could would indeed be speech. All of copyright law is something of a limitation on the freedom to speak, and courts have consistently and continually recognized the tension between the two. The Constitution itself recognizes limits on speech -- after all, it is the basis for Copyright law. (The DMCA itself was actually passed under the Commerce Clause, but we'll ignore that hiccup for this.) There limits on speech besides copyright, such as threatening another or the overused example of yelling fire in a crowded theater. Libel and slander are forbidden, though they are elements of speech.
All this is to say that using the phrase "free speech" doesn't get you a pass to say whatever you want. Yes, the Constitution and the courts have been very protective of the First Amendment, and generally interpreted it broadly, but there are limitations.
Problem #1 with arresting someone for wearing a "suspicious" breadboard: Terrorists wouldn't do that.
Seriously, are we honestly so stupid to believe that terrorists are going to go walking around with wires all over their clothes?
In all fairness, they very well might if they had suicide bombing on their minds and they believed that was the way to get away with the suicide bombing. That is to say, if we declare that anyone wearing a "suspicious" breadboard is obviously too stupid to be a terrorist, then logically the smart terrorists will start wearing breadboards to do their bombings.
Wow, the article has basically no more information than the summary. It doesn't tell us what "stupid male geek culture" is, or what the objectionable elements of it are. It's hard to have more than an emotional reply when the article contains so little description of what is actually wrong...
It is a bit sad that many of these incidents do not figure in the mainstream media - which seems to be in the powerful grips of these Corporate thugs. While it's possible that some corporation may be exercising some undue influence, it seems just as likely (if not more) to me that people simply don't care. Have Sony's CD sales been hurt by the rootkit incident? (And I mean on a meaningful level, not anecdotally.) Has Microsoft lost business from its anti-trust issues? Those have certainly received a great deal of media attention, but the greatest portion of the public seems not to care.
I would say that wide distribution is far more important than money for true art. People don't create true works of art to lock up and only be viewed/listened to/etc. by those with money. True art is a message, and the more easly a message can be distribtued the more it encourages the production of art
Okay, I can understand that hypothesis -- but there's nothing preventing anyone from doing that now. That is to say, there's nothing preventing an artist from distributing his or her work to the entire world for free. Some artists do that. Others do not, and presumably those have some motivation besides distribution. I would not go so far as to say they're not artists simply because they wish to make a living at what they do.
Further, as P2P traffic goes, the only art that anyone is objecting to the copying of is the commercial art which you imply is, at best, a craft. It has value to people nonetheless. Why are those who choose to distribute expecting some sort of monetary return undeserving of said return?
The pretense of this right is to promote the Progress of Science and useful Arts not to protect a failed and obsolete business model.
What is your suggestion for promoting science and the useful arts? How do we encourage authors, painters, musicians, etc if they have no protection for their works? You can go on about how most of the money never reaches artists (and you'd be right in many cases), but some money definitely does. Our current copyright law protects works for too long, but other than that what changes would you make?
Duly noted, but isn't the payment judgement against capitol, as that's who's listed in the court documents?
Yes, as Capitol owns the copyright and was the origin of the suit. You used the term RIAA, so I was following your convention. In most cases on/., people use the term RIAA as a proxy for "the major record labels". I quoted RIAA to indicate I was talking of the actual group -- though I suppose that's the reverse of what I should have done...
That hasn't been my impression; it seems to me that almost everybody I've met knows about Big Music's lawsuits against single moms, kids, grandparents, and dead people.
That hasn't been my experience, but even so, settling this particular case isn't going to stop that general awareness. My assertion was primarily that most people are unaware of this particular case.
Surely it would be better for the RIAA to just pay up and stop all the publicity about the case.
While it's certainly an issue on slashdot, I would say the average person on the street doesn't know (or likely care) because there's not a huge amount of mainstream publicity. From talking to the people at the RIAA, they don't seem to care about the perception. My perception of their perception is that they believe the people who are against them don't understand the problem.
And, as a side note, the "RIAA" is essentially a group of lawyers. There's no issue about where the power lies because they were created to lobby and to sue.
Wikipedia has a pretty good answer.
If it meets the tests then it's fair use. If not, sue.
That's not just the Wikipedia answer, that's what the US Code says in 17 USC 107. It's a standard that gives the judiciary wide latitude to decide what is or is not fair, but gives frustratingly few bright line rules as to what is allowable and what is not. A person's good faith determination won't do it -- even the opinion of a lawyer won't. The best a copyright lawyer can do is give you his or her best guess as to what a court might decide. If you'd like that changed, I suggest you speak with Congress.
You know there will be much whining about people that bought $Song for $PriceA only to find that it fell to $PriceB.
You mean like people who complain when there's a sale at $Store, and people riot outside because they purchased before the sale? There are demonstrations against Fry's every weekend, after all...
Slashdot Mirror
The quote above strikes me as greatly amusing. Ham fisted satire is not exactly what I'd call subversive. This kind of statement seems like something an attention seeking high school student would come up with. It seems like something more subtle would also be more effective.
There is a difference between a license and an agreement (contract). A license (in this case) grants you a form of property. Specifically, it grants you some property with restrictions on how that property may be used. It was historically first used of real property, but has been extended to other forms of property as well. For example, a ticket to a show is generally a license to a particular seat at a particular time with some additional restrictions on your conduct at that show. Software is often transferred with a license (whether that license be BSD, GPL, proprietary, etc.) which governs your exercise of property rights over that software.
A contract, by the common law formula, requires an offer, acceptance of that offer, and consideration for the agreement. There are exceptions to that formula, of course, but it generally holds true. "Consideration" means "payment" in broad terms. Consideration could be money, it could be the promise to perform a certain action or to withhold from performing a certain action.
There are limits as to what a contract or license can do, which gets to your point, I believe. For example, a statement which says "by reading this, you agree to give me all your money" is neither a license nor a contract. If included within a license or a contract it may or may not be enforceable depending on the circumstances. For example, if I have $4, and you agree to give me a book for "all my money", that's likely a reasonable contract. If I have millions of dollars, and you agree to give me the most valuable book in all the world for "all my money", that's also likely enforceable. If, on the other hand, you obtain my agreement by some trick (as in your example above of the book), it's likely not enforceable. I simply will not accept transfer of the book once I am aware of the terms of the license.
In other words, I think you are arguing against the wrong concept. There are such things as licenses, and you may well need one in order to convince someone to transfer some property right in a thing to you. I use GPL'd software under the conditions of its license, just the same as I use proprietary software. I didn't agree to the GPL, but I accept the software under the conditions of the license.
As for being admitted someplace else, each state has different requirements, but all have some sort of ethics requirement. Being disbarred in one state is serious enough that it would likely be quite difficult to pass the ethics requirements of another state.
And yet, people go right on buying CDs and downloading this product which isn't wanted, according to you. They do this despite the (however remote) possibility of legal action against them. If people honestly didn't want the music the (companies which make up the) RIAA would be out of business already. They would have no income and no means to continue their day-to-day operations, let alone the lawsuits.
You can criticize their methods, but you can't honestly say they don't produce a product that at least some people want to buy. Perhaps you don't, and that's fine. But obviously many people do.
Ditto on Kingdom of Loathing. It's not flash, but it's tons of fun.
I mean, it's just a link to the xkcd comic. "Your downtime" indeed...
I assume they would elect to take statutory damages.
Yeah, I tend to agree from the evidence I've heard, but the jury instruction is what is really important to me. The best outcome might even be that the judge refuses to give the "making available" jury instruction. The RIAA wins the case, and then neither side appeals. That would let this defendant set an important president for the instruction, and keep it from being appealed. Just a thought...
1) We don't know how it's going to turn out. I think the RIAA has actually done the best job they could do to present their case. They have strong circumstantial evidence that this particular defendant uses the Kazaa user name in question, and that she was likely the only person using the computer. The standard in a civil case is proof by a preponderance of the evidence. That is to say, that it's more likely than not that she did what is claimed. It doesn't have to be lock solid, or beyond a reasonable doubt. On the flip side, the defense has also done an excellent job controlling who gets to testify, and appears to have argued for good jury instructions. The most important thing to come from this case may well be the "making available" jury instruction, as that will likely be a major issue for future cases.
2) This is going to be appealed. If the defendant wins, the RIAA will appeal. They have to. If the RIAA wins, I imagine the defendant will appeal so long as she can afford it. As likely, both sides will have parts of the ruling that they're unhappy with, and they will cross-appeal. This decision won't end the case.
It's a very interesting and important case. I look forward to more developments.
From either of the linked articles, I have no idea what the objectionable content is. It sounds violent, but what FPS isn't? Can anyone provide more info?
I tend to agree with you. Another response to you claims that PJ's analysis is respected -- and that might be true of the people who agree with her opinion before she writes it. I think her analysis is sometimes correct, and sometimes not. I think you have to remember it's her blog -- she's not an attorney.
The paper or source could would indeed be speech. All of copyright law is something of a limitation on the freedom to speak, and courts have consistently and continually recognized the tension between the two. The Constitution itself recognizes limits on speech -- after all, it is the basis for Copyright law. (The DMCA itself was actually passed under the Commerce Clause, but we'll ignore that hiccup for this.) There limits on speech besides copyright, such as threatening another or the overused example of yelling fire in a crowded theater. Libel and slander are forbidden, though they are elements of speech.
All this is to say that using the phrase "free speech" doesn't get you a pass to say whatever you want. Yes, the Constitution and the courts have been very protective of the First Amendment, and generally interpreted it broadly, but there are limitations.
Seriously, are we honestly so stupid to believe that terrorists are going to go walking around with wires all over their clothes?
In all fairness, they very well might if they had suicide bombing on their minds and they believed that was the way to get away with the suicide bombing. That is to say, if we declare that anyone wearing a "suspicious" breadboard is obviously too stupid to be a terrorist, then logically the smart terrorists will start wearing breadboards to do their bombings.
Wow, the article has basically no more information than the summary. It doesn't tell us what "stupid male geek culture" is, or what the objectionable elements of it are. It's hard to have more than an emotional reply when the article contains so little description of what is actually wrong...
Anyone who cares that much about the salary is in the wrong business...
Okay, I can understand that hypothesis -- but there's nothing preventing anyone from doing that now. That is to say, there's nothing preventing an artist from distributing his or her work to the entire world for free. Some artists do that. Others do not, and presumably those have some motivation besides distribution. I would not go so far as to say they're not artists simply because they wish to make a living at what they do.
Further, as P2P traffic goes, the only art that anyone is objecting to the copying of is the commercial art which you imply is, at best, a craft. It has value to people nonetheless. Why are those who choose to distribute expecting some sort of monetary return undeserving of said return?
What is your suggestion for promoting science and the useful arts? How do we encourage authors, painters, musicians, etc if they have no protection for their works? You can go on about how most of the money never reaches artists (and you'd be right in many cases), but some money definitely does. Our current copyright law protects works for too long, but other than that what changes would you make?
Yes, as Capitol owns the copyright and was the origin of the suit. You used the term RIAA, so I was following your convention. In most cases on /., people use the term RIAA as a proxy for "the major record labels". I quoted RIAA to indicate I was talking of the actual group -- though I suppose that's the reverse of what I should have done...
That hasn't been my experience, but even so, settling this particular case isn't going to stop that general awareness. My assertion was primarily that most people are unaware of this particular case.
While it's certainly an issue on slashdot, I would say the average person on the street doesn't know (or likely care) because there's not a huge amount of mainstream publicity. From talking to the people at the RIAA, they don't seem to care about the perception. My perception of their perception is that they believe the people who are against them don't understand the problem.
And, as a side note, the "RIAA" is essentially a group of lawyers. There's no issue about where the power lies because they were created to lobby and to sue.
If it meets the tests then it's fair use. If not, sue.
That's not just the Wikipedia answer, that's what the US Code says in 17 USC 107. It's a standard that gives the judiciary wide latitude to decide what is or is not fair, but gives frustratingly few bright line rules as to what is allowable and what is not. A person's good faith determination won't do it -- even the opinion of a lawyer won't. The best a copyright lawyer can do is give you his or her best guess as to what a court might decide. If you'd like that changed, I suggest you speak with Congress.
You mean like people who complain when there's a sale at $Store, and people riot outside because they purchased before the sale? There are demonstrations against Fry's every weekend, after all...