Yep. It's a disappointing ruling, but it's far from over. The thought that an AG can't investigate potential violations of state law is shocking. What's Google hiding?
Either way, Google pointed out that the broad subpoena that Hood issued to Google clearly violated Section 230 of the CDA in looking to hold Google accountable for other's actions and speech.
Did you read the subpoena? Hood asks for details about Google's own actions. Why pretend otherwise?
Feel free to provide a citation to a dictionary that has that definition. Feel free to link to it, if the dictionary is online.
I get this from multiple legal sources. But the obvious cite is the Restatement: "A right, as the word is used in this Restatement, is a legally enforceable claim of one person against another, that the other shall do a given act or shall not do a given act." Restatement (First) of Property § 1 (1936).
Here's where your argument falls flat. Free speech is a natural right, it is not granted by the government but recognized by it.
I agree that it's a natural "right," but I disagree that anyone has any such "right" (in the US) above and beyond what the First Amendment guarantees. It's based in natural law, but that natural law is constitutionalized in the First Amendment. Can you cite a single person arguing that he has a free speech "right" above and beyond what the First Amendment protects? i can't. And I've looked.
When copyright enters the picture and tries to change that to a privilege, this is the government seeking to alter what is a natural right, an inalienable right.
This is silly. If the right were natural and inalienable in the sense you're advocating, copyright laws would be unconstitutional. They are not. Free speech rights are circumscribed in numerous ways. That's a descriptive fact.
Remember that average_joe only likes the law if it fits his opinions.
That's silly. I love the law, uber allies. Even when i disagree. But we mustn't confuse our personal aspirations of what we want the law to be with the descriptive reality of what the law actually is. Mike is dreaming when he says fair use is not a defense. As a descriptive fact, he is demonstrably wrong. His claim to the contrary is simply unsupported by reality. That never stops him, though.
What a misguided analogy. The right isn't that I can forcibly take YOUR books and make fair use of them, but that YOU can take YOUR books and make fair use of them. Why would I want to make fair use of your books when I have my own? You're again mixing up physical property with intangible property.
If you truly had a right to make fair use of a work, then you would have a right against me such that I couldn't prevent you from exercising that right. A right implies a duty of noninterference. If you had the right, I'd have the duty to not interfere with your right. I have no such duty because you have no such right. I can interfere with your fair use attempts all day long because you only have a privilege, not a right.
To use your terms - the copyright owner owes the would-be fair user a duty. They cannot stop you from making copies, and you do not need their permission to do so. That's is the right to fair use.
A copyright owner owes a fair user no duty whatsoever. He can make the exercise of the fair use privilege as hard as he wants--even preventing it altogether if he chooses.
Guess you didn't read the article, but that would be shocking.
"Freedom of expression is a right that may not be abridged by the government..." And fair use falls within that.
I read the article. And I cringed at the pain of Mike's purported constitutional analysis. Telling Congress they can't abridge your freedom of speech is not the same thing as telling you you have the right to speak freely.
What duty is associated with the right to freedom of expression under the First Amendment?
In the sense that we're discussing "rights," the First Amendment doesn't create them. It states: "Congress shall make no law . . . abridging the freedom of speech[.]" This creates in Congress a disability. It has no ability to create laws abridging our freedom of speech. But that's not the same thing as a right to speak freely.
I must also point out that in your response, you quoted Mike's work. You used it, without asking him for permission first. Do you have a right to use it, or would you be happy if Mike took you to court over it?
Assuming Mike's work is copyrighted, then the default is that others cannot copy it. Mike obtained exclusive rights in it the moment he fixed it in a tangible medium. I have no right to use it. He has the right to exclude me from using it, and I have the duty not to use it. However, I did use it because my use is excused by fair use. Fair use negates my duty not to use it, and it gives me a privilege to use it instead. He can sue, but he'd lose.
If a system is working, then there's no need to comment on it, it's only the parts that aren't that need attention. Why exactly do people throw such fits over TD and others pointing out when the system is being abused like this, with clearly bogus claims being made via the system?
If there's millions and millions of infringements happening, then the system is NOT working. Those infringers are abusing the system. That's my point. There's abuse on both sides. TD only cares about one side, but not the other. You'll never condemnation of those who intentionally violate the rights of others. But if a rightholder carelessly makes a mistake in fighting back against a sea of those who intentionally violate his rights, look out. TD is on the case. It's a bullshit double standard.
If a system is working, then there's no need to comment on it, it's only the parts that aren't that need attention. Why exactly do people throw such fits over TD and others pointing out when the system is being abused like this, with clearly bogus claims being made via the system?
If there's millions and millions of infringements happening, then the system is NOT working. Those infringers are abusing the system. That's my point. There's abuse on both sides. TD only cares about one side, but not the other. You'll never condemnation of those who intentionally violate the rights of others. But if a rightholder carelessly makes a mistake in fighting back against a sea of those who intentionally violate his rights, look out. TD is on the case. It's a bullshit double standard.
[I]it's wrong to refer to fair as merely a "limitation or exception" to copyright law -- or merely a defense to infringement. It is a right that is protected by the First Amendment. The Supreme Court has regularly referred to "fair use" as a "safeguard" of the First Amendment, allowing copyright law to be compatible with the First Amendment. As such, it seems bizarre that fair use is not seen as the default, rather than the other way around.
It's hilarious that you demand that fair use is a "right," but you don't bother to define what the word "right" means. Do you even know what it means?
I'll tell you: A right is a legally enforceable claim against another that he should do some act or refrain from doing some act. For example, I own my land, and I have a right to exclude others from entering my land. If you enter my land without my consent, I have a legally enforceable claim against you. I can obtain damages and an injunction against you for the trespass. That's a right.
Fair use is not a right. A would-be fair user has no legally enforceable claims against anyone that they should do or not do some act. I have lots of books on my bookshelf. You have no legally enforceable claim against me as to my books. You can make fair use of the works contained therein, but only if you can gain legal access to them first. I have no duty to produce the books to you because you have no right. You can't sue me to produce the books because you have no right.
Rights and duties go hand in hand. If you have a right, someone else has a duty. With fair use, there is no duty. No one owes a would-be fair user any duty. There is no duty because there is no right. Instead, fair use is a privilege. It negates the duty one would otherwise have not to copy a given work. The right is with the rightholder, that is, the copyright owner. That owner has exclusive rights, that is, legally enforceable claims against others that they should not copy the work. Fair use relieves the fair user of the duty that would be otherwise owed to the rightholder.
As far as the Supreme Court holding that fair use may be grounded in the First Amendment, so what? That doesn't mean it's a right. The First Amendment creates a privilege to use the work. It negates the duty to not use it. But it's still not a right because there's no legally enforceable claim. The First Amendment doesn't give you the right to break into my house so you can make fair use of the books on my bookcase. You still can't sue me and force me to let you make fair use of my books.
The fact is that the Supreme Court has explicitly said that it's an "affirmative defense." Defenses are not necessarily rights. You have no right to use the work, just a privilege. It's a defense because it's not a right. If it were a right, there would be a fair use claim. What claim is there for a would-be fair user? None. Because there is no right. You simply have no right to make fair use of a work, and that's why there's no cause of action available to a would-be fair user. And it's why it operates as an affirmative defense.
I don't expect a substantive response, Mike, but it would be nice. If you have some other definition of "right," please do share. Your argument that it's a "right" would be better if you bothered to tell us what you think a "right" is.
Sorry, but now there's no excuse that the pro-copyright people can make on here.
The DMCA must be amended so that anyone making a takedown swears under penalty of perjury that they hold copyright or represent the holders of *all* sites or links they demand takedowns for.
There's no excuse for them. Google should sue under 512(f). They've got the war chest. Sic the dogs on 'em.
For far too long, we've seen abuse after abuse reported here. Those responsible for this abuse literally *need* to be punished, to show that corrupt practices will no longer be tolerated.
The people involved in this, along with Prenda and their supporters belong in jail. It's time the maximalists dropped their unreasonable objections to justice.
There are millions upon millions of notices sent, and you guys always focus on a handful of questionable ones. What about the legitimate ones? Why should the infringement they represent go unpunished? Those people engage in "abuse after abuse," yet Techdirt never calls for their heads. Why the double standard?
Natty Greene is a small micro-brewery with a couple of locations out of North Carolina and they make craft beer. Anheuser-Busch is a macro-brewery if ever there was one and Natural Light is what college kids drink because it costs roughly the same as a thimble of sand in the Arabian Desert.
The fact that it's so popular actually favors A-B, on both the confusion and the dilution claims it argued in the opposition. (You seem to assume it's just confusion. The opposition says dilution as well.)
The chance of someone attending a tasting at a Natty Greene location and somehow thinking the whole thing was coordinated by the same people who make Budweiser, Beck's and Natural Light is effectively null.
Why look at whether customers at the brewery are confused? If I saw this beer at the store (and I believe it's available in a few states, not just the brewery), my first thought would be Natty Light. I don't think it's that crazy.
With just a small application of the common-sense-juice to A-B's lawyers' brain-thoughts, a whole lot of time and money could have been avoided, considering we ended up in the same place as though no opposition had been filed anyway.
They spent many months working out a settlement. Why assume the end result of that confidential settlement has them in the same exact position? That makes little sense.
This deserves top insightful spot for the week, honestly.
Because it thinks one of most settled points in all of property law is equivalent to one of the newest and unsettled points? Hardly seems insightful to me.
Patents are the RESULT of innovation, not what spurs it.
Classic chicken and egg problem here. One cannot obtain a patent without first having innovated.
The marketable rights to the inventions act as incentives to inventors. They invest time and money in R&D because they hope to recoup their investments later with the marketable rights. This is Patent Law 101.
I am remembering what I read months ago. You may be right about it being conjecture by the article’s author and not a quote from Musk. I’ll look and see if I can find the sources I read last summer.
Tesla will allow other manufacturers to use its patents in “good faith” – essentially barring those users from filing patent-infringement lawsuits against the electric car company or trying to produce knockoffs of Tesla’s cars. Musk cited two prime motivations for the move.
Opening up Tesla’s technology could increase sales of electric cars and move the world away from oil-burning vehicles that contribute to global warming.
“I don’t think people quite appreciate the gravity of what is going on,” Musk said. “We need to do something. We would be shortsighted at Tesla if we kept these things close to our vest.”
He also believes that the patent system needs reform.
Tesla will continue to seek patents for its new technology to prevent others from poaching its advancements and then filing their own patents as a “blocking maneuver.” But those future patents will also be open to anyone willing to follow Musk’s “good faith” guidelines.
The information about cross-licensing appears to be coming from Musk himself. The point remains, thought, that if he really wants others to use his patents, he's not making the licenses very clear.
Yes, I disagree with certain parts of the opinion. The bit about consideration and contracts is superfluous. That's my opinion. I'm happy to say I disagree and then tell you exactly why. What's wrong with that? I wish others here did as much more often.
So yeah, we should all take these at face value because they affirm your position, but because you kinda disagree with the conclusions on this one, it's probably wrong?
Again, not all opinions are the same. You're quoting a comment of mine where I explained that labor begets property. That point is so well-settled, it's ridiculous. It literally dates back at least two MILLENNIA to Roman law. It's probably older than that. There is hardly a more fundamental concept in property law. I can cite case after case, from every different level of court, going back centuries, spanning multiple continents. The point is so basic it hurts.
That's hardly comparable to open source licenses. How many years have those been around? Not many. There is no robust body of law interpreting them. In fact, the Federal Circuit was the first appellate court to look at them. So you're comparing one of the most fundamental aspects of property law, well-settled and well-known by jurist dating back through the ages, to a very modern problem that only a handful of courts have ever looked at.
See the difference?
As to the rest, I think you're wrong. I care about right and wrong. I care deeply about what's moral. The point I made about labor begetting property comes from the natural law, which is based in morality. In my experience, morality is the one thing Techdirt DOESN'T like to talk about. Strange you should suggest otherwise.
On the post: Court Doesn't Buy Mississippi Attorney General Jim Hood's Argument: Puts His Google Demands On Hold
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On the post: Court Doesn't Buy Mississippi Attorney General Jim Hood's Argument: Puts His Google Demands On Hold
Did you read the subpoena? Hood asks for details about Google's own actions. Why pretend otherwise?
http://www.nytimes.com/interactive/2014/12/17/technology/document-google-subpoena-from-mis sissippi.html?_r=0
On the post: Reminder: Fair Use Is A Right -- And Not 'An Exception' Or 'A Defense'
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I look forward to the day you actually make a substantive argument. Join us!
On the post: Reminder: Fair Use Is A Right -- And Not 'An Exception' Or 'A Defense'
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I get this from multiple legal sources. But the obvious cite is the Restatement: "A right, as the word is used in this Restatement, is a legally enforceable claim of one person against another, that the other shall do a given act or shall not do a given act." Restatement (First) of Property § 1 (1936).
On the post: Reminder: Fair Use Is A Right -- And Not 'An Exception' Or 'A Defense'
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I agree that it's a natural "right," but I disagree that anyone has any such "right" (in the US) above and beyond what the First Amendment guarantees. It's based in natural law, but that natural law is constitutionalized in the First Amendment. Can you cite a single person arguing that he has a free speech "right" above and beyond what the First Amendment protects? i can't. And I've looked.
When copyright enters the picture and tries to change that to a privilege, this is the government seeking to alter what is a natural right, an inalienable right.
This is silly. If the right were natural and inalienable in the sense you're advocating, copyright laws would be unconstitutional. They are not. Free speech rights are circumscribed in numerous ways. That's a descriptive fact.
On the post: Reminder: Fair Use Is A Right -- And Not 'An Exception' Or 'A Defense'
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That's silly. I love the law, uber allies. Even when i disagree. But we mustn't confuse our personal aspirations of what we want the law to be with the descriptive reality of what the law actually is. Mike is dreaming when he says fair use is not a defense. As a descriptive fact, he is demonstrably wrong. His claim to the contrary is simply unsupported by reality. That never stops him, though.
On the post: Reminder: Fair Use Is A Right -- And Not 'An Exception' Or 'A Defense'
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If you truly had a right to make fair use of a work, then you would have a right against me such that I couldn't prevent you from exercising that right. A right implies a duty of noninterference. If you had the right, I'd have the duty to not interfere with your right. I have no such duty because you have no such right. I can interfere with your fair use attempts all day long because you only have a privilege, not a right.
To use your terms - the copyright owner owes the would-be fair user a duty. They cannot stop you from making copies, and you do not need their permission to do so. That's is the right to fair use.
A copyright owner owes a fair user no duty whatsoever. He can make the exercise of the fair use privilege as hard as he wants--even preventing it altogether if he chooses.
On the post: Reminder: Fair Use Is A Right -- And Not 'An Exception' Or 'A Defense'
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"Freedom of expression is a right that may not be abridged by the government..." And fair use falls within that.
I read the article. And I cringed at the pain of Mike's purported constitutional analysis. Telling Congress they can't abridge your freedom of speech is not the same thing as telling you you have the right to speak freely.
On the post: Reminder: Fair Use Is A Right -- And Not 'An Exception' Or 'A Defense'
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In the sense that we're discussing "rights," the First Amendment doesn't create them. It states: "Congress shall make no law . . . abridging the freedom of speech[.]" This creates in Congress a disability. It has no ability to create laws abridging our freedom of speech. But that's not the same thing as a right to speak freely.
On the post: Reminder: Fair Use Is A Right -- And Not 'An Exception' Or 'A Defense'
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Assuming Mike's work is copyrighted, then the default is that others cannot copy it. Mike obtained exclusive rights in it the moment he fixed it in a tangible medium. I have no right to use it. He has the right to exclude me from using it, and I have the duty not to use it. However, I did use it because my use is excused by fair use. Fair use negates my duty not to use it, and it gives me a privilege to use it instead. He can sue, but he'd lose.
On the post: Total Wipes Decides The Word 'Download' Means Infringement, Issues DMCA Takedown Loaded With Non-Infringing URLs
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If there's millions and millions of infringements happening, then the system is NOT working. Those infringers are abusing the system. That's my point. There's abuse on both sides. TD only cares about one side, but not the other. You'll never condemnation of those who intentionally violate the rights of others. But if a rightholder carelessly makes a mistake in fighting back against a sea of those who intentionally violate his rights, look out. TD is on the case. It's a bullshit double standard.
On the post: Total Wipes Decides The Word 'Download' Means Infringement, Issues DMCA Takedown Loaded With Non-Infringing URLs
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If there's millions and millions of infringements happening, then the system is NOT working. Those infringers are abusing the system. That's my point. There's abuse on both sides. TD only cares about one side, but not the other. You'll never condemnation of those who intentionally violate the rights of others. But if a rightholder carelessly makes a mistake in fighting back against a sea of those who intentionally violate his rights, look out. TD is on the case. It's a bullshit double standard.
On the post: Reminder: Fair Use Is A Right -- And Not 'An Exception' Or 'A Defense'
It's hilarious that you demand that fair use is a "right," but you don't bother to define what the word "right" means. Do you even know what it means?
I'll tell you: A right is a legally enforceable claim against another that he should do some act or refrain from doing some act. For example, I own my land, and I have a right to exclude others from entering my land. If you enter my land without my consent, I have a legally enforceable claim against you. I can obtain damages and an injunction against you for the trespass. That's a right.
Fair use is not a right. A would-be fair user has no legally enforceable claims against anyone that they should do or not do some act. I have lots of books on my bookshelf. You have no legally enforceable claim against me as to my books. You can make fair use of the works contained therein, but only if you can gain legal access to them first. I have no duty to produce the books to you because you have no right. You can't sue me to produce the books because you have no right.
Rights and duties go hand in hand. If you have a right, someone else has a duty. With fair use, there is no duty. No one owes a would-be fair user any duty. There is no duty because there is no right. Instead, fair use is a privilege. It negates the duty one would otherwise have not to copy a given work. The right is with the rightholder, that is, the copyright owner. That owner has exclusive rights, that is, legally enforceable claims against others that they should not copy the work. Fair use relieves the fair user of the duty that would be otherwise owed to the rightholder.
As far as the Supreme Court holding that fair use may be grounded in the First Amendment, so what? That doesn't mean it's a right. The First Amendment creates a privilege to use the work. It negates the duty to not use it. But it's still not a right because there's no legally enforceable claim. The First Amendment doesn't give you the right to break into my house so you can make fair use of the books on my bookcase. You still can't sue me and force me to let you make fair use of my books.
The fact is that the Supreme Court has explicitly said that it's an "affirmative defense." Defenses are not necessarily rights. You have no right to use the work, just a privilege. It's a defense because it's not a right. If it were a right, there would be a fair use claim. What claim is there for a would-be fair user? None. Because there is no right. You simply have no right to make fair use of a work, and that's why there's no cause of action available to a would-be fair user. And it's why it operates as an affirmative defense.
I don't expect a substantive response, Mike, but it would be nice. If you have some other definition of "right," please do share. Your argument that it's a "right" would be better if you bothered to tell us what you think a "right" is.
On the post: Total Wipes Decides The Word 'Download' Means Infringement, Issues DMCA Takedown Loaded With Non-Infringing URLs
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The DMCA must be amended so that anyone making a takedown swears under penalty of perjury that they hold copyright or represent the holders of *all* sites or links they demand takedowns for.
There's no excuse for them. Google should sue under 512(f). They've got the war chest. Sic the dogs on 'em.
For far too long, we've seen abuse after abuse reported here. Those responsible for this abuse literally *need* to be punished, to show that corrupt practices will no longer be tolerated.
The people involved in this, along with Prenda and their supporters belong in jail. It's time the maximalists dropped their unreasonable objections to justice.
There are millions upon millions of notices sent, and you guys always focus on a handful of questionable ones. What about the legitimate ones? Why should the infringement they represent go unpunished? Those people engage in "abuse after abuse," yet Techdirt never calls for their heads. Why the double standard?
On the post: Anheuser-Busch Drops Trademark Opposition Against Natty Greene Brewing Co.
The fact that it's so popular actually favors A-B, on both the confusion and the dilution claims it argued in the opposition. (You seem to assume it's just confusion. The opposition says dilution as well.)
The chance of someone attending a tasting at a Natty Greene location and somehow thinking the whole thing was coordinated by the same people who make Budweiser, Beck's and Natural Light is effectively null.
Why look at whether customers at the brewery are confused? If I saw this beer at the store (and I believe it's available in a few states, not just the brewery), my first thought would be Natty Light. I don't think it's that crazy.
With just a small application of the common-sense-juice to A-B's lawyers' brain-thoughts, a whole lot of time and money could have been avoided, considering we ended up in the same place as though no opposition had been filed anyway.
They spent many months working out a settlement. Why assume the end result of that confidential settlement has them in the same exact position? That makes little sense.
On the post: Elon Musk Clarifies That Tesla's Patents Really Are Free; Investor Absolutely Freaks Out
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Because it thinks one of most settled points in all of property law is equivalent to one of the newest and unsettled points? Hardly seems insightful to me.
On the post: Elon Musk Clarifies That Tesla's Patents Really Are Free; Investor Absolutely Freaks Out
Re: Re: antidirt
Classic chicken and egg problem here. One cannot obtain a patent without first having innovated.
The marketable rights to the inventions act as incentives to inventors. They invest time and money in R&D because they hope to recoup their investments later with the marketable rights. This is Patent Law 101.
On the post: Elon Musk Clarifies That Tesla's Patents Really Are Free; Investor Absolutely Freaks Out
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I found the article I was remembering: http://www.latimes.com/business/autos/la-fi-hy-elon-musk-opens-tesla-patents-20140612-story.html#pag e=1
Quote:The information about cross-licensing appears to be coming from Musk himself. The point remains, thought, that if he really wants others to use his patents, he's not making the licenses very clear.
On the post: Elon Musk Clarifies That Tesla's Patents Really Are Free; Investor Absolutely Freaks Out
Re: tl/dr of what antidirt just said
On the post: Elon Musk Clarifies That Tesla's Patents Really Are Free; Investor Absolutely Freaks Out
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Again, not all opinions are the same. You're quoting a comment of mine where I explained that labor begets property. That point is so well-settled, it's ridiculous. It literally dates back at least two MILLENNIA to Roman law. It's probably older than that. There is hardly a more fundamental concept in property law. I can cite case after case, from every different level of court, going back centuries, spanning multiple continents. The point is so basic it hurts.
That's hardly comparable to open source licenses. How many years have those been around? Not many. There is no robust body of law interpreting them. In fact, the Federal Circuit was the first appellate court to look at them. So you're comparing one of the most fundamental aspects of property law, well-settled and well-known by jurist dating back through the ages, to a very modern problem that only a handful of courts have ever looked at.
See the difference?
As to the rest, I think you're wrong. I care about right and wrong. I care deeply about what's moral. The point I made about labor begetting property comes from the natural law, which is based in morality. In my experience, morality is the one thing Techdirt DOESN'T like to talk about. Strange you should suggest otherwise.
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