Great Article, but P2P can also be fully legitimate
It is a great article, but sometimes it is worth stating the obvious to go with it:
There arenumerous legitimate uses for P2P software. Many large software packets (OpenOffice and many Linux ISOs) are most effeciently distributed by P2P software, especially if the distributor is a small operation for whom bandwidth is a major line item.
I am not a lawyer, and it depends on the jurisdiction and the details, but this is not always true.
Depending on jurisdiction, there are ways to make sure certain types of assets (and debts) are tied solely to one person or the other. But by default assets and debts after marriage are marital, and can apply equally to both parties. A creditor of a debt acquired after marriage is normally free to go after marital assets to satisfy the debt.
In Nevada as an example, assume one spouse has no income, but the other spouse has an income above the poverty level. If the spouse without income defaults, a creditor may first secure a judgment against the debt and then request a writ of execution to garnish the other spouses income, but at a reduced monthly rate of what they could garnish the debtor's income.
My wife, for instance, now has a job. But for a long time she didn't, and she still got credit cards in her name without my involvement without any problem because the creditors knew she was backed by my income.
I am not a lawyer, but to be clear the "joint and several" normally comes up in torts in determining who is (or can be) liable, not in regards to who holds positive assets.
Family law is governed on a state by state basis, so there is some variation, but generaly assets that are held by both parties may be described as "marital" or "communal" or in some cases (mostly regarding land) as "joint tenancy with right of survivorship."
Most jurisdictions do allow certain types of properties which are acquired in certain ways to be held separately and to never become marital assets. Nevada for instance will allow inherited assets which are carefully kept separate from the marital assets to be treated as the sole property of one party or the other.
As to whether a facebook account could be viewed as a marital asset, I suspect (again I am not a lawyer, and I think this would not be an area of settled law anyway) that the answer would NORMALLY be no. The first thing is that many courts are likely to not view a normal facebook account as property at all. It is rather access to a service granted entirely at the suffrance of company. It would be more akin to a PO Box rented month to month.
Even were it to be viewed as property, depending on the jurisdiction there is a reasonable chance it would be viewed as solely belonging to the account holder. Facebooks TOS implies that a personal account is to be held by a person, and it is integrally linked with an individual.
There may be exceptions for product pages or corporate pages which may truly have economic value and might very well be marital property if say one spouse was the sole proprietor of a company started after the marriage. But an average individual account would probably not be viewed as an asset at all and probably wouldn't be viewed as a marital asset if determined to be an asset.
Re: Oh, you routinely say legislators don't know what they're signing.
""They [videos] are platform agnostic." -- Nope. Require specific software in the browser."
I think that "they" refers to the people uploading the videos, not YouTube itself, though the sentence is somewhat ambiguous.
Even YouTube itself is platform agnostic in the sense that it checks for certain features, not specific platforms. I will never be able to view YouTube on my programmable TI-83 calculator since it doesn't support the needed features. But I can view YouTube regardless of using Windows, Linux, FreeBSD, Android, IOS, etc regardless of whether I am using FireFox, IE, Chrome, or Opera.
If someone comes out with a whole new OS and a whole new Browser tomorrow, Youtube would work as long as that combination implemented all required features. That fits "platform agnostic" as it is generally used when talking about computer technologies.
That is reasonable, but I do not think the facts support it.
Looking at copyright, while some creative works like paintings retain their value a hundred years later, the vast majority don't. The vast majority will see all of their commercial value depleted in the first few years, and part of that value is generally freshness, which fades fast.
As for patents, many (especially those that are extremely broad) would still remain valuable today. While new bells and whistles kept being added, the core workings of the land-line telephone remained the same since the first commercial telephone to now. We finally have things like cellphones which are truly supplanting them, but even then a lot of traditional telephones still use those basic principles.
For that matter, John Barber received a patent on turbinesin 1791. While they have certainly evolved since then, they still use many of the same principles even now, and much of their evolution really was evolution based on older designs. If that patent was still in force (and in force in American since that was granted in Britain), it would be likely that the Hoover Dam would be infringing.
I have only read the portions quoted here, but I think this essay may go too far. I see a value in copyrights and patents where this essay seems to see none and gives no consideration to the possibility they have any.
Now of course, my comment should not be taken too far. I think copyrights and patents in their current incarnation largely cause more problems for society than they solve. Copyright terms are far too long, fair use ought to be much stronger, and it is far too easy to get patents which are ridiculously broad and do not actually disclose the innovation (which was the main point of the original British Statute of Monopolies). I think our copyright and patent systems both need to be dramatically reformed in favor of more openness.
Yet, this article seems to say that because their current incarnation is burdensome and unworkable that it should be abolished entirely. I think that may be going a bit too far personally, even if I am sympathetic to the specific claims of the harm done by our current system.
" How long would it take before Mike got tired of not only being the butt of jokes, but also of having his words used for someone else to gain profit?"
Well, if you were actually funny about it I would wager he would link to you frequently, he tends to encourage parody and doesn't seem to mind good natured mocking. I would certainly read both sites, as long as it were actually funny.
"The premise of my book is that most online companies rely for their content, and hence for their money, on traditional media companies."
This statement is even more ridiculous than you make it out.
Of the sites I visit on a daily basis, most provide services. DragonGoServer lets me play go with people across the world. Facebook, Gmail, my bank's website, Google+, StackOverflow, Ask.SqlServerCentral.com are all providing services rather than content in the traditional sense.
Many of the other sites I visit often like ArsTechnica.com and Simple-Talk.com are either creating or comissionin their own content quite independently of traditional media companies.
Perhaps I am unusual, but if traditional media companies all vanished *most* of my internet usage would be entirely unaffected.
Of the sites I use that do rely on traditional media (Amazon.com, Pandora, and Netflix) they all add enormous value to that media. I buy more music now than ever before, and find more music that is actually good, and it is entirely because of Pandora.
"If they are so simple minded as to not understand technology enough to know how to do this, they really get what they deserve. Stop asking for kids names, and you won't have to worry if you stored them or not."
There are several problems with this. For one, it is children suffering from a lack of content tailored for them online more than it is a company sufferin for making the choice no to provide content for young children.
Further, it is not that simple to comply. If you permit any form of commenting at all and knowingly permit someone under 13 to participate (without going through an incredibly burdensome process of getting verified consent from a parent), you have essentially violated this.
And finally, even if there were somehow an easier and effective wa to comply, a chilling effect is created by the *perception* that compliance is difficult.
This does not just happen in the legal areas, but when you try to precisely define any term with some actual consequences assigned to the outcome of that definition. This is a common theme in science and mathematics as well as law and philosophy. In philosophy and logic it is related to "The Problem of Vagueness". And it is one of the major issues addressed in Lakatos' treatise "Proofs and Refutations."
Most terms used in every day language are not well defined. But for most uses, people don't care. Context and knoweldge of the speaker will often provide further clarification beyond the mere definition, and beyond that we normally just don't care. We are highly tolerant of vagueness in normal communications and normally don't inquire too deeply into it.
It just so happens that contracts and related legal areas are becoming increasing prevalent in the life of an average person. They have become for most people the one area where vagueness is often not well tolerated, and it can be surprising to see how hard it is to define a term and how high the stakes can be in an area where vagueness is not tolerated and nuanced implications can matter significantly.
You make an excellent point. I use both services, but I talk to friends and family on facebook (most of whom aren't on Google+). I use Google+ mostly to talk to other programmers and other Go players.
Damaging a marketplace throuh competition is quite difficult. Competition will generally only improve a marketplace by forcing all competitors to improve, or if done very poorly will have no effect on the market at all.
There are a couple of exceptions, but they are pretty well. A company could fail so spectacularly that it makes consumers turn away from an entire class of products or forces the government to bring in heavy handed regulation. But that generally involves some sort of catastrophic failure in safety and goes far beyond competin poorly.
Alternatively, a company could attempt to drive competitors out of business through anti-competitive means such as tying or dramtically subsidizing one product with with revenue from other products specifically to drive another company out of the market. But we already have ways of dealing with that scenario under the law.
I think saying "since Erie v. Tompkins, there is no federal common law", may be either reading Erie v. Tompkins too broadly or else reading the term "common law" much more narrowly than it normally is.
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) definitively rejected the idea of a "General" or "Universal" common law that should be applied in diversity cases. It did not affect the common law created by federal courts regarding matters under federal jurisidction.
At the risk of being totally unoriginal, I always consider the resale value of a game when I am deciding whether to buy it. I routinely buy a $60 game, knowing I can resell (either to gamestop or through craigslist) for somewhere around $20, making what I am really paying closer to $40.
If I could not resell my games, I would not be willing to pay so much for most of them. I have never paid $60 for a download only game. And if video games keep getting more expensive, I may just have to drop that hobby and focus on playing Go.
There is some irony here in the fact George Orwell was a pen name.
Also, I think there is a lot of ambiguity in how you definie a real name. Some people who come to the USA from non-western countries occassionally adopt a Western name or a westernized version of their name for use here. Even when they keep the same pronounciation, there are sometimes wide varieties of proper ways to transliterate it into Roman letters. Some people go by their middle names, and others are known by a non-standard shortening of their first name. Would those cases be considered a real name or a pseudonym in violation of these policies?
That is possible though the small snippet reads more like summary judgement ruling than a 12(b)(6) which is really only concerned about whether the plaintiff made a prima facie allegation of a claim for which relief can be granted where it would not matter what inferences were made or what was even possible.
Does anyone have the entire judgment or at least the full case citation to make looking it up easier?
I have not looked into the details of the case, but based on the short snippet you provide, it looks like this was rejection of a request for summary judgment. When considering a request for summary judgment, the judge must make every possible inference in favor of the non-moving party.
So, remember this is not saying MegaUpload is even likely to be liable for direct infringement. It is merely saying that when every possible inference is made against MegaUpload that what the other side has alleged is enough that it might possibly constitute direct infringement.
I believe your commentary somewhat conflates two related but definitely distinct questions.
The first is "Should a lower standard be used in judging these patents?" I do not really know the answer to this question, but I know you have made some very compelling arguments.
The second is "Should the Supreme Court mandate that a lower standard be used?" I believe the answer to this one is a resounding No. Even if a lower standard should be used, Congress did, as the Supreme Court itself points out, seem to ratify the higher standard in legislation. It is not the Supreme Court's place to modify this legislation unless it is in direct conflict with a higher authority such as the Constitution. Whether or not the members of Congress actually understood what they were doing in passing this legislation is largely irrelevant in deciding if The Surpeme Court should be able to change it, it remains Congress's bailiwick, and not the court systems, to change it now that it stands as statute.
Life itself is 100% fatal, and while I take reasonable precautions to ensure that my life is long and healthy, fear of remote risks should not stop someone from living their life fully.
On the post: Why The Supreme Court's 'Grokster' Decision Led To More, Not Less, P2P Filesharing
Great Article, but P2P can also be fully legitimate
There arenumerous legitimate uses for P2P software. Many large software packets (OpenOffice and many Linux ISOs) are most effeciently distributed by P2P software, especially if the distributor is a small operation for whom bandwidth is a major line item.
On the post: Judge Orders Divorcing Couple To Swap Facebook And Dating Site Passwords, Breaking Facebook's Own Rules
Re: Re:
Depending on jurisdiction, there are ways to make sure certain types of assets (and debts) are tied solely to one person or the other. But by default assets and debts after marriage are marital, and can apply equally to both parties. A creditor of a debt acquired after marriage is normally free to go after marital assets to satisfy the debt.
In Nevada as an example, assume one spouse has no income, but the other spouse has an income above the poverty level. If the spouse without income defaults, a creditor may first secure a judgment against the debt and then request a writ of execution to garnish the other spouses income, but at a reduced monthly rate of what they could garnish the debtor's income.
My wife, for instance, now has a job. But for a long time she didn't, and she still got credit cards in her name without my involvement without any problem because the creditors knew she was backed by my income.
On the post: Judge Orders Divorcing Couple To Swap Facebook And Dating Site Passwords, Breaking Facebook's Own Rules
Re:
Family law is governed on a state by state basis, so there is some variation, but generaly assets that are held by both parties may be described as "marital" or "communal" or in some cases (mostly regarding land) as "joint tenancy with right of survivorship."
Most jurisdictions do allow certain types of properties which are acquired in certain ways to be held separately and to never become marital assets. Nevada for instance will allow inherited assets which are carefully kept separate from the marital assets to be treated as the sole property of one party or the other.
As to whether a facebook account could be viewed as a marital asset, I suspect (again I am not a lawyer, and I think this would not be an area of settled law anyway) that the answer would NORMALLY be no. The first thing is that many courts are likely to not view a normal facebook account as property at all. It is rather access to a service granted entirely at the suffrance of company. It would be more akin to a PO Box rented month to month.
Even were it to be viewed as property, depending on the jurisdiction there is a reasonable chance it would be viewed as solely belonging to the account holder. Facebooks TOS implies that a personal account is to be held by a person, and it is integrally linked with an individual.
There may be exceptions for product pages or corporate pages which may truly have economic value and might very well be marital property if say one spouse was the sole proprietor of a company started after the marriage. But an average individual account would probably not be viewed as an asset at all and probably wouldn't be viewed as a marital asset if determined to be an asset.
On the post: Viacom Says That By Letting People View Videos On Phones, YouTube Loses DMCA Safe Harbors
Re: Oh, you routinely say legislators don't know what they're signing.
I think that "they" refers to the people uploading the videos, not YouTube itself, though the sentence is somewhat ambiguous.
Even YouTube itself is platform agnostic in the sense that it checks for certain features, not specific platforms. I will never be able to view YouTube on my programmable TI-83 calculator since it doesn't support the needed features. But I can view YouTube regardless of using Windows, Linux, FreeBSD, Android, IOS, etc regardless of whether I am using FireFox, IE, Chrome, or Opera.
If someone comes out with a whole new OS and a whole new Browser tomorrow, Youtube would work as long as that combination implemented all required features. That fits "platform agnostic" as it is generally used when talking about computer technologies.
On the post: Which Causes More Harm: Copyright Or Patents?
Re: Why patent terms haven't been extended
Looking at copyright, while some creative works like paintings retain their value a hundred years later, the vast majority don't. The vast majority will see all of their commercial value depleted in the first few years, and part of that value is generally freshness, which fades fast.
As for patents, many (especially those that are extremely broad) would still remain valuable today. While new bells and whistles kept being added, the core workings of the land-line telephone remained the same since the first commercial telephone to now. We finally have things like cellphones which are truly supplanting them, but even then a lot of traditional telephones still use those basic principles.
For that matter, John Barber received a patent on turbinesin 1791. While they have certainly evolved since then, they still use many of the same principles even now, and much of their evolution really was evolution based on older designs. If that patent was still in force (and in force in American since that was granted in Britain), it would be likely that the Hoover Dam would be infringing.
On the post: Which Causes More Harm: Copyright Or Patents?
I think this essay goes too far
Now of course, my comment should not be taken too far. I think copyrights and patents in their current incarnation largely cause more problems for society than they solve. Copyright terms are far too long, fair use ought to be much stronger, and it is far too easy to get patents which are ridiculously broad and do not actually disclose the innovation (which was the main point of the original British Statute of Monopolies). I think our copyright and patent systems both need to be dramatically reformed in favor of more openness.
Yet, this article seems to say that because their current incarnation is burdensome and unworkable that it should be abolished entirely. I think that may be going a bit too far personally, even if I am sympathetic to the specific claims of the harm done by our current system.
On the post: What Happens When You Get Two Internet Haters Together? An Interview That Kills Brain Cells
Re:
Well, if you were actually funny about it I would wager he would link to you frequently, he tends to encourage parody and doesn't seem to mind good natured mocking. I would certainly read both sites, as long as it were actually funny.
On the post: What Happens When You Get Two Internet Haters Together? An Interview That Kills Brain Cells
Traditional Media Not Needed for Internet
This statement is even more ridiculous than you make it out.
Of the sites I visit on a daily basis, most provide services. DragonGoServer lets me play go with people across the world. Facebook, Gmail, my bank's website, Google+, StackOverflow, Ask.SqlServerCentral.com are all providing services rather than content in the traditional sense.
Many of the other sites I visit often like ArsTechnica.com and Simple-Talk.com are either creating or comissionin their own content quite independently of traditional media companies.
Perhaps I am unusual, but if traditional media companies all vanished *most* of my internet usage would be entirely unaffected.
Of the sites I use that do rely on traditional media (Amazon.com, Pandora, and Netflix) they all add enormous value to that media. I buy more music now than ever before, and find more music that is actually good, and it is entirely because of Pandora.
On the post: The Unintended Consequences Of Trying To Overprotect Children From The Internet
Re:
There are several problems with this. For one, it is children suffering from a lack of content tailored for them online more than it is a company sufferin for making the choice no to provide content for young children.
Further, it is not that simple to comply. If you permit any form of commenting at all and knowingly permit someone under 13 to participate (without going through an incredibly burdensome process of getting verified consent from a parent), you have essentially violated this.
And finally, even if there were somehow an easier and effective wa to comply, a chilling effect is created by the *perception* that compliance is difficult.
On the post: Why Some 'Easy' Legal Questions Aren't Always So Easy: Is A Burrito A Sandwich?
Its not just legal
Most terms used in every day language are not well defined. But for most uses, people don't care. Context and knoweldge of the speaker will often provide further clarification beyond the mere definition, and beyond that we normally just don't care. We are highly tolerant of vagueness in normal communications and normally don't inquire too deeply into it.
It just so happens that contracts and related legal areas are becoming increasing prevalent in the life of an average person. They have become for most people the one area where vagueness is often not well tolerated, and it can be surprising to see how hard it is to define a term and how high the stakes can be in an area where vagueness is not tolerated and nuanced implications can matter significantly.
On the post: Does Google Have What It Takes To Be A Platform, Rather Than A Product, Company?
Re: The biggest problem with Google+
On the post: Does Google Have What It Takes To Be A Platform, Rather Than A Product, Company?
Re:
There are a couple of exceptions, but they are pretty well. A company could fail so spectacularly that it makes consumers turn away from an entire class of products or forces the government to bring in heavy handed regulation. But that generally involves some sort of catastrophic failure in safety and goes far beyond competin poorly.
Alternatively, a company could attempt to drive competitors out of business through anti-competitive means such as tying or dramtically subsidizing one product with with revenue from other products specifically to drive another company out of the market. But we already have ways of dealing with that scenario under the law.
On the post: Judge Makes Company Pay More For Infringement Because The CEO Complained Publicly About The Patent System
Re: Re: Erie v. Tompkins
Quite agreed. I fully concur with the majority of your post, but I thought that point was significant enough to clarify.
On the post: Judge Makes Company Pay More For Infringement Because The CEO Complained Publicly About The Patent System
Erie v. Tompkins
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) definitively rejected the idea of a "General" or "Universal" common law that should be applied in diversity cases. It did not affect the common law created by federal courts regarding matters under federal jurisidction.
On the post: More Misplaced Hatred For The Used Games Market
I factor in resale when deciding whether to buy
If I could not resell my games, I would not be willing to pay so much for most of them. I have never paid $60 for a download only game. And if video games keep getting more expensive, I may just have to drop that hobby and focus on playing Go.
On the post: What's In A Name: The Importance Of Pseudonymity & The Dangers Of Requiring 'Real Names'
Also, I think there is a lot of ambiguity in how you definie a real name. Some people who come to the USA from non-western countries occassionally adopt a Western name or a westernized version of their name for use here. Even when they keep the same pronounciation, there are sometimes wide varieties of proper ways to transliterate it into Roman letters. Some people go by their middle names, and others are known by a non-standard shortening of their first name. Would those cases be considered a real name or a pseudonym in violation of these policies?
On the post: Court Finds Megaupload Could Be Guilty Of Direct Infringement In Perfect 10 Case
Re: Re: This was a summary judgment motion
Does anyone have the entire judgment or at least the full case citation to make looking it up easier?
On the post: Court Finds Megaupload Could Be Guilty Of Direct Infringement In Perfect 10 Case
This was a summary judgment motion
So, remember this is not saying MegaUpload is even likely to be liable for direct infringement. It is merely saying that when every possible inference is made against MegaUpload that what the other side has alleged is enough that it might possibly constitute direct infringement.
On the post: Score One For The Trolls: Supreme Court Says Congress Intended It To Be Very Difficult To Invalidate Patents
The first is "Should a lower standard be used in judging these patents?" I do not really know the answer to this question, but I know you have made some very compelling arguments.
The second is "Should the Supreme Court mandate that a lower standard be used?" I believe the answer to this one is a resounding No. Even if a lower standard should be used, Congress did, as the Supreme Court itself points out, seem to ratify the higher standard in legislation. It is not the Supreme Court's place to modify this legislation unless it is in direct conflict with a higher authority such as the Constitution. Whether or not the members of Congress actually understood what they were doing in passing this legislation is largely irrelevant in deciding if The Surpeme Court should be able to change it, it remains Congress's bailiwick, and not the court systems, to change it now that it stands as statute.
On the post: Would People Stop Using Mobile Phones If More Evidence Shows Them To Be Carcinogenic?
No
Life itself is 100% fatal, and while I take reasonable precautions to ensure that my life is long and healthy, fear of remote risks should not stop someone from living their life fully.
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