Obama Administration Sides With Technology Over Hollywood In Cablevision Case
from the finally! dept
It's no secret that those of us who have been in favor of pushing back against the worst abuses of intellectual property law have been disappointed by the Obama administration -- which brought in a number of entertainment industry lawyers and seemed to side with IP holders over the public at almost every turn... until now. We've talked about the importance of the lawsuit over Cablevision's remote DVR system, and whether it represented copyright infringement. The appeals court had ruled that just because the DVR was hosted at Cablevision's datacenter instead of in a house it wasn't infringement. This makes perfect sense. Yet the entertainment industry has been claiming that allowing Cablevision to host DVRs on its own premise is infringement and Cablevision has to pay extra for the right to offer the same exact TiVo-type service that anyone can use in their home. Earlier this year, the Supreme Court asked the new Solicitor General to weigh in. At the time, we noted that this could be a good thing, since one of the last things Solicitor General Elena Kagan did before leaving Harvard to join the administration was recruit Larry Lessig to Harvard.And, indeed, it appears that Kagan has not succumbed to entertainment industry's tortured logic on this issue and has recommended that the Supreme Court not take the case, saying that the appeals court ruling reasonably resolved the issues in the case. Either way, it's nice to see that the administration hasn't been totally taken over by those who believe in twisting copyright law to protect obsolete business models.
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Filed Under: cloud computing, copyright, elena kagan, obama administration, remote dvr
Companies: cablevision
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That is a pretty big jump. Perhaps because the issues have been pretty much covered by the lower court, perhaps it is better not to waste the Supreme Courts time on the matter, allow more pressing and more important issues to move ahead.
Any idea what percentage of cases that apply to go before the Supreme Court actually get there? Look it up.
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Berkman
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Re:
That is a pretty big jump. Perhaps because the issues have been pretty much covered by the lower court, perhaps it is better not to waste the Supreme Courts time on the matter, allow more pressing and more important issues to move ahead.
Any idea what percentage of cases that apply to go before the Supreme Court actually get there? Look it up.
Uh, that's a totally different issue. Of course we know that that Supreme court doesn't take up very many cases, but this isn't about that (in fact we have no clue if they're taking this one up or not yet). The point was that it was a surprise to have the administration actually (finally) choose the non-Hollywood side in interpreting copyright law. That's the big surprise, which is what we were talking about here.
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Not Content with Content
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Just look at all the various services that have shut down or decided to start charging for what used to be a free service. People didn't like it, but there wasn't much they could do about it.
It sounds like a conspiracy and at this point, they may not even be thinking that far ahead, but I can't help thinking that this is just the first step in eliminating in-home DVRs, either provided by the company, or bought by users, in favor of remote DVR services. Then, once stand-alone DVRs have become obsolete, they can start charging for the service, imposing quotas, etc.
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So, Almost, are you a lawyer? I sincerely would be interested in learning where you think Mike has his legal facts wrong. I wouldn't know for sure since I'm not a lawyer. While I think some of Mike's opinions are a bit extreme, it's always been pretty clear to me that they are his opinions. It is, after all, a blog.
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It doesn't matter...
Don't believe me? - See CSS-LA vs. Kaleidescape or WGA vs Kindle. (not real cases but you get the drift.) If the content industry can't win in court, they will just change the rules.
I won't be affected by this ruling, simply because I record all of my stuff at home and watch it later. I even have a 4TB server to help with that. I just feel sorry for those people who aren't as technically inclined.
Hollywood did try and take away that right in Sony Vs. Universal and later with trying to ramrod CBDTPA through congress and later with the FCC. I am glad that those cases won, though.
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Obama fan and I'll wait to see-he did not create problem.
NOW - Chaney say's thier success in stopping further 9-11's buy doing th ethings they did. And I'm certain part of it was due to the hourendous misinformation department that Bush 2 said didn't exisit - that's would be the first announcement I would make if I had created a department of misiformation. But 9-11 became an excuse for every small errosion of our personal liberties. If we would have keep as close a watch on Afganistan and trained our military to circumvent the rules of engagement, oh.... never mind. Focused on rounding up the true criminals (you use your imagination but it wasn't the French or other allies who wouldn't back that action up - Demcaracy is not a spectator sport. Clinton, though his hands somewhat tied to carry through some of the Bush 1's policies, finally broke free. And it showed when he opended up exporting of cryptology/encryption - we needed it but we're talked out of using it. It make private conversations private. But not adopting it in all communications of the elctronic age allowed the NSA and other "we don't exist" agencies to do massive, unathorized key word scans of phone calls, etc. with voice recognation and text recognation pointing at The United State of America. Hme of the Free and the Brave. Those actions made us home of the scared and the oppressed. Not as bad as many other peoples and countries but still not right. We need to have a private conversations remain so. Privacy for protectection of freedoms.
Early. Clinton was all about supporing Bush 1 initiatives as was Kennedy to Eiesinhowers all ready in the works. (Failures) - Now the big car companies along with the oil companies hidden agenda as well as our "friends" in dubia - agra-conn poison food creatators, not world hung solvers, in my opinion. The world has tipped to the wrong side and the south pole moves north. Our senses and idealogise have been warped. a
To many people are not giving Obama the wide bearth he needs. And he, in a long list of political promises, has integrity and has been as quickly as he can, doing what he said would move toward. It's a damn shame, Bush 2's 1st cabinet and the think tank, turned out to be the people(a small number of people making decisions about war and then pilliaging OUR money to make it happen.) That Eisenhower warn us about in his fair well speech. Reference, Why we Fiht.
Eiesinhower coined the phrase Military Industrial Complex - it had become a necessity. (a debate could continue and was started in January 1960) In general turning plow shares to swords when needed could no longer ensure the protection of our country. And he was concerned about the day when a person who occupied his "this seat" and the few made decisions for the many and didn't know as much about war as he did.
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Continued
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Re: Obama fan and I'll wait to see-he did not create problem.
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Re: Obama fan and I'll wait to see-he did not create problem.
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Good for him.
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Funny, because there are numerous lawyers who seem to agree with me and I discuss these issues all the time with them.
I've noticed two interesting patterns:
1. The *only* lawyers who seem to lash out at me for being clueless are those who are small time practicing IP lawyers -- or lawyers for the entertainment industry. IP lawyers at larger firms as well as those with substantial academic work tend to feel that I do a pretty good job (even if they don't always agree with me). Basically, it's only those who are looking to exploit the system who claim I just don't get it.
2. Whenever an IP lawyer shows up here and yells about how I don't get it... they never bother to explain a *single* thing I got wrong. They just insist I'm clueless.
So... enlighten us. What did I get wrong in this post?
You are so cynical that you really believe that every decision or procedure involving intellectual property is "on the merits"?
When did I say that? And, wouldn't being cynical imply that I would assume that they were *never* decided on the merits?
You really need to always state that you are a non-lawyer and these are your personal beliefs because quite frankly, that's all they are.
I've always said that. This is an opinion site, and I am always stating my opinion as a non-lawyer. I've never claimed otherwise. Can you point to a single example where I've claimed I was a lawyer or that I was not giving my personal beliefs?
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Not Obsolete
A smart business changes its models and/or maintains several models to cover a dynamic market space.
Essentially, as a business, you want to be your own competition.
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One of the big things with this case is that the studios stipulated they wouldn't pursue any secondary liability and Cablevision stipulated it wouldn't plead fair use. Imagine if that happened in Grokster. The OSG's brief goes on at length to explain why this makes the case crap for determining liability.
And yes, I am an IP lawyer, and I have no idea who these "big firm attorneys" are who agree with Mike.
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Cutting Mike some slack
Mike, unlike myself, blogs about both subjects: (a) existing copyright law, and (b) copyright reform. He also blogs about how the music industry is changing, and about how it could set up better business models.
One needs to differentiate which subject he is talking about.
From my experience, when -- as in this article -- he is talking about existing copyright law, he has really taken the trouble to educate himself and to state the law correctly.
Would the RIAA and MPAA lawyers were as careful as he to do so.
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Maybe you could explain the term Intellectual Property.
1) Where exactly is it stipulated that patent, copyright or trademark are property ?
2) What is intellectual about it ? I submit that intellect has very little to do with it.
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Re: Cutting Mike some slack
With all due respect, I must disagree that the term "radicalism" should be ascribed to the actions of those rights holders prosecuting these suits. "Agressive", and perhaps "overly agressive", is in my view a much more apt term. Whether or not one agrees with the path they have chosen, it is not against the law to seek enforcement of the law. Foolish, perhaps, under the circumstances, but certainly not "radical".
I am heartened that there are people such as yourself you who represent persons and tirelessly work on their behalf as defense counsel.
If there is a problem within our legal system in general, it is that the price of "justice" has risen far past the point where ordinary people have the financial means at hand to participate in the system without the prospect of facing financial ruin. Of course, the same can be said with equal force about our health care system.
Is there a solution? Honestly, I do not know, but in my view this is one area that requires significant thinking out of the box, and I for one would heartily endorse and participate in efforts to address this issue. Equal access under the law should not depend upon access to a virtually unlimited supply of money to prosecute or defend an action before our courts.
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IANAL, however...
Maybe you could explain the term Intellectual Property."
There is no such thing. It is only a colllective term invented by big content holders to try to encompass all copyright/trademark/etc laws under one scary-sounding umbrella to frighten and bully people. This gets repeated by big media in the form of statements like "XXX is seeking to protect its intellectual property rights" when no such thing exists. This sets a false belief in the masses that ideas are property, and should be seen as "theft" when its really "infringement" under the law. You cant steal something unless you are depriving someone of something permanently, like stealing a car. See also the fallacy of "piracy." I'm sure those who lost their lives in recent weeks at the hands of REAL pirates on the high seas would love to know how their life-and-death plight has been equated with a 15 year old kid sharing a copy of a song.
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They supported one big company over the other...
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Copyrights: 17 USC 201 (among others) and judicial decisions up to and including the Supreme Court.
Trademarks: I am not aware of trademarks being deemed "property" as that erms is employed with respect to patents and copyrights. If it was "property", for example, then one should be able to "sell" a trademark. However, there is a well known legal doctrine that a trademark may not be transferred "in gross", which strongly suggests that to call a trademark "propery" is inapt. In the final analysis however one can view trademarks as a form of "quasi-property" in that it does confer a right of exclusion in circumstances where another party's use of the mark in association with certain goods/services does provide a trademark holder with exclusionary rights. Trademark dilution similarly confers in limited situations similar exclusionary rights.
Obviously, many persons associate "property" with tangibles, but it is important to be cognizant of the fact that under our system of laws property is a legal, versus economic, concept.
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Radicalism ... Intellectual property
I do accuse the RIAA's lawyers of "radicalism". A good lawyer does not take indefensible positions. It is "radicalism" in my book to pretend the law says something it does not, to make false representations to a court, to eschew making concessions or compromises, to do whatever one is instructed to do by one's clients, to bring ex parte proceedings when notice can be given, to conduct proceedings solely for the purposes of harassment and terror. Under that definition, I accuse the RIAA lawyers of radicalism.
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17 USC 201 - The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.
> So patents are considered to have attributes of personal property. Is personal property tax one of those attributes? If it were real property, why do the owners rights expire?
> The exerpt regarding copyright only addresses transfer of said rights as though it were personal property. Is estate tax applicable in this case?
> Case law all the way to the SC sounds nice, but does not hold water. Obviously I am not a lawyer, but really ... if it were real property would any of the above even be necessary?
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Once again, note that not a single example is provided of what I got wrong.
And every single time you quote Mike on how ridiculous and hypocritical his stuff is he'll say something to the effect of "that's not what I said" even though it's exactly what he said.
Please point me to an example. I would appreciate you not make up stuff, because this is simply not true. Oftentimes people like yourself falsely accuse me of saying something that I simply did not say -- but that you extrapolated incorrectly from what I did say.
For example, many people falsely claim that I have said that you should just give stuff away and a business model will show up. I've actually said that's a bad business model.
At other times people have accused me of supporting unauthorized file sharing, which I do not.
One of the big things with this case is that the studios stipulated they wouldn't pursue any secondary liability and Cablevision stipulated it wouldn't plead fair use. Imagine if that happened in Grokster. The OSG's brief goes on at length to explain why this makes the case crap for determining liability.
I agree. That was a very big deal related to this case, but I'm not sure how it makes anything I said false.
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If the Surpreme Court can hear only a certain number of cases and year, and the administration feels there are other more pressing / important cases to put in front of the court, they would likely issue a dissuasive comment for those cases they don't to burden the court with. So when you say:
"it appears that Kagan has not succumbed to entertainment industry's tortured logic on this issue and has recommended that the Supreme Court not take the case, saying that the appeals court ruling reasonably resolved the issues in the case. Either way, it's nice to see that the administration hasn't been totally taken over by those who believe in twisting copyright law to protect obsolete business models."
you have made a couple of major jumps of logic that are not supported by facts as presented.
First, you have no idea what Karan may or may not have succumbed to. "twisted logic" or "political needs" or "order of importance" or "other things are more important". So there is little to support your assertion that Kagan did or did not "succumb" to the entertainment industry's point of view.
Second, there is no way to know what the people in the administration are thinking, and there is certainly no more proof of a takeover by pro-copyright people than there is of a takeover by women, by hispanics, or by people who like Bobby Vinton. You noted a certain number of lawyers that lean that way hired, but you didn't indicate what percentage of the total legal staff they represent, etc. You also didn't touch the opinions of the rest of the staff.
Usually when you are wishing for something to happen, you tend to read what you want into the actions of others. I learned a long time ago to follow the simple path, when there is an absence of information, believe the simpliest path until proven otherwise. You are trying to hard to make this fit your desired pattern, going past opinion and right off to wishful thinking.
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RTFA
There is no way for any objective reader to actually read the brief and dismissively pass it off as being based on a mere conclusion that "the administration feels there are other more pressing / important cases to put in front of the court".
Numerous points of substantive law were made, and each and every argument of the film companies was explicitly rejected on substantive grounds.
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Re: Radicalism ... Intellectual property
I agree. It is a term that, while used sporadically since the mid-1800's, did not fall into vogue until the early 1980's.
An unfortunate side effect of its use is that all of a sudden it seemed that an incredibly large number of lawyers began to hold themselves out as "IP attorneys" when in fact their familiarity with the law was extremely tenuous and typically limited to but a small subset of the relevant law.
When I hear the term I associate it with practitioners steeped in the substantive law of patents, copyrights, trade secrets, unfair competition and related causes. For this reason my business cards have never used the term "intellectual property" or any of its variants.
I still rue the day when I voted in favor of changing the name of the APLA to the AIPLA. Little did I know how much the change from "patent" (a generic term embracing at least patents, trademarks, copyrights and unfair competition) to "intellectual property" would change the legal landscape. Almost overnight a practice that required many years of study (state, federal and international law), mentoring, etc. was supplanted by a group of "practitioners" whose only qualifications were a one semester elective in law school.
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Dilution
I think that may have had more to do with the internet boom than anything else.
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It appears that allocation of Property is not a Federal Issue, but rather, a local issue.
The last check I made regarding taxes for my home, (Called "Property Taxes") and something I consider property, was to local government.
A car is often considered property, and payment on taxes is usually also paid on a local basis, as I did a few months ago.
If you are going to try to allocate and provide intellectual Property (assuming it deserves the capital "P") Shouldn't it be allocated on a local level with all other "Properties", as the Federal Government is not involved in allocation of Property?
It seems again, that allocation of Property, be it Physical or Intellectual should be performed on a local basis as the Federal Government has no Constitutional Right granted to them to determine Ownership.
Only enforcement.
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Yup. This is an issue involving large businesses that is being pursued under the "cover" of copyright law. If the copyright approach falls short of the mark, contract law is standing by in the wings and ready for rapid deployment.
At times I am perplexed by those who raise a hue and cry for eliminating copyright. It has its drawbacks, but it also has salient features. Shun copyright law in favor of contract law and I fear some may look fondly back to the days when copyright law was in place.
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Re: Re: It doesn't matter...
I understand part of your perspective, as that is probably the weathered life you live in. If so, we have commonality. I don't think anyone in this thread has called for elimination of Copyright, as you propose.
Happy to see you get in the mud on this fine Sunday Afternoon.
Welcome To TechDirt.
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Re: RTFA
If they leave doors open, the court can more easily choose to put this on the docket.
It is a very well written document that touches many issues, and will certain dissuade the surpreme court from taking up the case.
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Hmmm... this seems to work against a few things including the idea of Transparency and Accountability.
So, what's your name, Coward? I am curious of your background.
Again, I'm just curious.
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Re: Re: Re: It doesn't matter...
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Re: Re: RTFA
Tell me more.
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Re: Re: Re: RTFA
"this seems to work against a few things including the idea of Transparency and Accountability"
Well, I think of things like this as the little white lies of politics. Outside of the very small number of people that understand how this may or may not affect them, most everyone else doesn't care - or at least they don't know to care. So you have to consider how this would line up with other cases the Supreme Court has reviewed before, like abortion, flag burning, discrimination, segregation, and such. This may not have reached a level of public discourse that requires a ruling from the Surpreme Court.
Perhaps if there is another judgement at a lower level that goes the other way, or that in some way contradicts this lower court ruling, then it might be worth pushing it up. In the main time, downplay it, say the lower court got it right, and hope the Supreme Court decides to spend it's time on issues that are important for the people (and perhaps help to advance the government's goals or needs).
It is pretty much what happened for 8 years in the Bush administration, especially during the time of AG John Ashcroft, who really pushed hard on moral issues where possible.
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Names are always important to understand a person's position. Perhaps your familiar with Lexis Nexis. I prefer to understand the positions of my opponent.
...Outside of the very small number of people that understand how this may or may not affect them, most everyone else doesn't care - or at least they don't know to care.
Interesting perspective.
So you have to consider how this would line up with other cases the Supreme Court has reviewed before, like abortion, flag burning, discrimination, segregation, and such. This may not have reached a level of public discourse that requires a ruling from the Surpreme Court.
Sure, and this is perhaps why the DOJ decided to offer commentary (as the intent of this article) that the Supreme Court not see the case.
Perhaps if there is another judgment at a lower level that goes the other way, or that in some way contradicts this lower court ruling, then it might be worth pushing it up.
What are your prerequisites? Circuit or District level?
It is pretty much what happened for 8 years in the Bush administration, especially during the time of AG John Ashcroft, who really pushed hard on moral issues where possible.
Agreed, and it's increasingly becoming apparent that many executive level decisions, even those which perhaps Mr. Ashcroft weighed in on, were not beneficial to the country as a whole.
Perhaps there exists an alternative, but until a commercial alternative exists, it's difficult to persuade copyright owners one way or another.
Besides, the one who can make a difference is asleep right now.
Let's look at this again tomorrow.
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Conspiracy Indeed!!
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Lets assume it is real property. It can be considered as real property being sold to the public under specific terms (just like a contractor building me a house). If an artist doesn't like the terms no one is forcing him to create art (just like if a contractor doesn't like the terms no one is forcing him to build). Just because something is real property that you built/created doesn't make it indefinitely yours (ie: weather it be a house or a work of art). It was created under terms between the consumer and the producer. If a specific producer (contractor or artist) doesn't like the terms no one is forcing him to produce. But what the public (consumer) should not do is make one sided terms that are solely in favor of the producers (a contractor wouldn't do this, so why should the public do this in the case of intellectual property. The terms should include a fair length of time after which the product is free to use by everyone. If you don't like the terms, don't produce. Someone else will).
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You seem new to this debate. Why not read Mark's dissertation, and then come back with a stronger argument.
Intellectual Property in it's current form, is a form of Federally-subsidized enforcement, as such, a subsidy, and thusly, a Federally-Recognized Government Welfare Program of enforcement, of a "property" given, and overseen by a Federal Agency.
At the heart of this is the core argument that Federal Government is not, and was not granted the ability to allocate property.
Furthermore, it does not and can not involve itself in creating, defining, allocating, taxing, or otherwise involve itself in the business of repossessing property be it intellectual, real, or otherwise.
So if you assume it's real property, then, as another person earlier mentioned, Contract Law would preside.
However, considering the current state of Contract Law (Take GM your example), It would be best to probably put all your cards down and figure out the best answer which actually creates commerce.
But you're not a Business Person, Right?
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Copyright and patent laws are the rules of the road for how we lend, borrow, and sell this underlying asset. It's the fine print of real life. In many ways, they are similar to the rule of road, making sure that for the most part, allowing the easy flow of information, and helping in the flow of money.
Without it? Can you imagine attending a movie? You get to the theater 2 hours early with your attorney, and you review the 27 pages of terms and conditions set forth by the studio that produced the movie. You then read the 5 pages of terms set forth by the theater. You then sign the documents, proving your identification with your birth certificate and other form of government ID, and then you wait while the contract is signed by the lawyer for the theater and the studio, who then agree to sell you a ticket for a single showing - price? $500 per ticket. Buying a DVD would be a similar disaster, with the terms changing from DVD to DVD slightly in each case, depending on who wrote the terms. Let's not think about how much fun it would be for the next 20 or 30 years as people take individual studios to court to debate certain contract clauses.
Exaggeration? A little bit, but only to make the point that there are things that copyrights and patents do that ease potential problems in commerce. Without them, the simple act of listening to music or watching a movie could be turned into a legal hell.
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Obama and Technology
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Or... the theater down the street opens up and does none of that, and everyone stops going to the theater you run, and heads down the street and you go out of business.
Treating customers right continues to win, and there's no need to mess with contract law.
Without them, the simple act of listening to music or watching a movie could be turned into a legal hell.
Or not.
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We can currently treat customers well because we don't have to do all that stuff, because copyright and contract law steps in and allows us to define things such as single access tickets, DVDs for personal use only, etc. Without those parameters, we would be done to having to do the paperwork on every transaction.
Think about it. You can't buy a DVD until you sign a notarized document that limits you to view the movie alone and not share it with others. The serial number of your movie would be recorded, and displayed on the screen at all times so any copies you made would also have that serial number on it, making you personally liable.
You want to toss copyright and patents out the window, but you haven't considered what would happen without them (besides the happy bunny land of everything is free you keep pushing).
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It's fun to just make stuff up without any evidence, isn't it?
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Re: Re: Re: Re: RTFA
Background? web stuff since before the web was the web (archie anyone?). etc.
Sounds a lot like a weird harold we all knew at one point.
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Re: Obama and Technology
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oh PLEASE!
Oh my god will you PLEASE
SHUT
THE
F*CK
UP!
Mike has NEVER said "everything should be free." Good lord where do you people come from? Are your reading comprehension skills SO poor that you cant follow a simple idea? Let me spell it out a bit more clearly for those of you who are obviously in the slow-learner category:
FREE should be use AS A PART of a business model. It it NOT the entire business model. USE free, dont make it ALL free.
There hope that clears this up for you simpletons.
I weep for the future of this country with people like this out there.
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Re: oh PLEASE!
Another good reason why we shouldn't take copyright laws that favor only the MPAA and RIAA seriously. It's written by a bunch of people who seem to have obvious reading comprehension problems. Their justification is bogus.
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Re: Obama and Technology
Working well for whom, rich and powerful special interest groups like the RIAA and MPAA. It's not working well for the public and social welfare.
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Lest there be doubt about its significance, one need only look at the Order Sheet released today by the Supreme Court wherein it granted cert in the matter of In re Bilski. In this case the DOJ opined in its brief that cert should be denied.
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Heh. Well then they don't show that particular movie and instead they show one from the many, many, many smarter movie creators who don't try to put such limits on things.
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technology
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