I have to go with the Supreme Court on this one. Per the Betamax case, all non-commercial, non-profit copying is assumed to be fair use unless the copyright holder can show convincing evidence of past or future harm.
This is not, however, the end of the inquiry because Congress has also directed us to consider "the effect of the use upon the potential market for or value of the copyrighted work." 107(4). The purpose of copyright is to create incentives for creative effort. Even copying for noncommercial purposes may impair the copyright holder's ability to obtain the rewards that Congress intended him to have. But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create. The prohibition of such noncommercial uses would [464 U.S. 417, 451] merely inhibit access to ideas without any countervailing benefit.
Thus, although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial uses are a different matter. A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work. Actual present harm need not be shown; such a requirement would leave the copyright holder with no defense against predictable damage. Nor is it necessary to show with certainty that future harm will result. What is necessary is a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists. If the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated.
Notice there is nothing mentioned about "except when the full work is copied."
Here's why I think you're wrong on this one Mike. It's a point I've made here before. Despite all their supposed professional duties, we hold lawyers to a ridiculously low standard we would never accept for an MD, CPA, or equivalent professional.
While it's true we need to allow some leeway when it comes to using an unusual or downright strange legal theory, if there is significant caselaw showing an issue is already decided, which there is when it comes to transferring copyrights, a lawyer should have a professional duty not to mislead the court by suggesting there isn't. Otherwise the legal system is a farce in which a party with the funds to pay a lawyer to make specious arguments for a few months or years has a decided advantage over the average person.
What Gibson did in setting up Righthaven was equivalent to an accountant trying to write off hookers and blow on a client's tax return. He could argue about his theories on tax law all he wants, but in the end he's held responsible for what he should know. Gibson should be held to the same standard. If he didn't know the copyright assignments weren't valid, as a lawyer he has a duty to do the basic research which would have made it clear. Either it was fraud or failure to meet his basic responsibilities. In either case he should be punished.
Sure it does, but only between you and them. If you are connecting to your bank's website, you still have to use DNS and it still won't have DNSSEC capability. Your VPN makes no difference on that.
Once and for all, there is nothing in Protect IP that makes personal use of a VPN, for bypass the filter, illegal.
No there isn't. But the provision that makes it illegal for a server means DNSSEC won't ever see widespread use. If you read the original article Mike linked you'll understand the point better.
Or do you believe that an American Congress has no right nor power to suppress the publication of a true fact—absent a truly compelling national security reason.
Or do you not even think about the censorship issue and only consider whether you have the right to fix the problem? That's what the people pushing PROTECT IP don't understand. The attitude most people will likely have is, "I have the right to make my internet work."
There is nothing in Protect IP that says I cannot pay $200 a year for an offshore service, such as Perfect Privacy, to acceess any kind of web site.
There's a price to be paid if we let them chase US internet users to using offshore DNS. It's inefficient and leaves too much opportunity for someone with malicious intentions. Suddenly there's no need to attack a DNS server to poison its cache for malicious purposes. Now someone can just setup their own server outside the US to provide the false information directly to the end user. You're essentially ceding any semblance of control over the security of DNS to unknown entities outside your borders.
What Mike didn't mention was Paul told me DNSSEC wouldn't be implemented in his organization's DNS server, BIND, if PROTEC IP becomes law. That means it wouldn't be available on the majority of DNS servers on the Internet. Even your offshore service won't get its benefits. You've fixed "your" Internet, but they have still effectively outlawed a security feature you should get the advantage of.
There's a difference between blocking cell service and not boosting it. Not interfering with the signal is mandatory and regulated by the FCC. Boosting it is optional and not regulated.
I suspect it has more to do with the ridiculous ruling last week in which the judge as much as stated that he doesn't believe the speech on their site is protected and used that as an excuse to ignore their other arguments.
Nope. You're still confused. If linking is aiding and abetting, the most you could say is that a third party used their property to commit that crime, which once again doesn't qualify for forfeiture.
If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
He must apply the Constitution. Period. Not may, not can, but must. That means he must apply relevant Supreme Court decisions. Instead he answered the 1st Amendment question with a red herring. He claimed the speech didn't qualify for first amendment protection because a legislator didn't intend it to be covered by substantial hardship exclusion. In other words he admitted that his ruling on a Constitutional question was dictated by Congress, which directly contradicts Marbury.
Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.
This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory.
Which is what Marbury v Madison specifically says he is not allowed to do. Constitutionality is a separate issue, but it is one he is required by the Constitution to address.
A ruling based on the Congressional intent behind a law, while ignoring Supreme Court precedents which specifically forbid that interpretation is beyond the judge's authority. Decisions from the Supreme Court are the same as the Constitution itself for this purpose. They are the law, and just like any other time 2 laws come into conflict, the judge is required to consider both. Since the Constitution always takes precedence over a statute, when they come into conflict he is required to either interpret the statute in a way that eliminates the Constitutional conflict or, if that's not possible, declare it unconstitutional.
Once again, from Marbury v Madison
So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
The judge can't unilaterally decide that the First Amendment issue qualifies as a "substantial hardship" when Congress has defined it otherwise.
You're getting it backwards. The real issue is that neither Congress or a lower court judge may overrule the Supreme Court. For purposes of judicial rulings, the Constitution says whatever the Supreme Court says it does. All lower court decisions are bound by Supreme Court precedent.
If a law cannot be interpretted in such a way that it conforms to Supreme Court precedent, it is unconstitutional. If it can be interpreted in a way that it's consistent with those precedents, it must be. The Constitution, and by extension the Supreme Court's interpretation of the Constitution, trump all other considerations. And yes, that includes Congressional intent, an issue which is specifically addressed in Marbury v Madison.
It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.
Existing precedent from the Supreme Court states that the government must prove a compelling public interest for prior restraint. Fort Wayne Books v Indiana specifically says probable cause does not qualify as proof. Since the law states there are exceptions, either violating the Constitution must be an exception or the law is unconstitutional. In either case the seizure is unconstitutional.
The only unilateral decision being talked about here is the one this judge made to ignore the Supreme Court, and by extension the Constitution.
I think the judge got it right. Section 983(f)(1)(C) says: "the continued possession by the Government pending the final disposition of forfeiture proceedings will cause substantial hardship to the claimant, such as preventing the functioning of the business, preventing an individual from working, or leaving an individual homeless."
What Congress has to say about it is irrelevant. The Supreme Court has already said it's not allowed. That carries nearly the same weight as the Constitution itself, with the exception that it may be reversed by future Supreme Court decisions. It may not be overruled by Congress, the President, or the combined efforts of both by merely creating a federal statute.
If that really is the motivation behind this decision, it's poorly thought out. Lots of people use Netflix because they can get access to content like old TV shows or content from outside the US which isn't readily available through traditional rental outlets. I haven't decided if I will be sticking with a discs + streaming plan, but I can tell you for sure that if I have to choose one or the other it will be the discs. And I use the streaming service almost every day.
I would be shocked if more than a tiny percentage of Netflix customers would consider streaming an adequate substitute for their disc selection. And by tiny I mean 5% would be generous. I think that number needs to be at least 20% - 25% before this sort of move makes sense from a customer retention perspective.
Yes. And it's worth noting that insurance companies routinely attempt to get out of paying big claims regardless of whether they are legitimate or not.
On the post: Righthaven Appeals The Idea That Using Entire Work Could Be Fair Use
The Supreme Court disagrees with that assessment
Notice there is nothing mentioned about "except when the full work is copied."
On the post: If Righthaven Declares Bankruptcy, Expect Lawyers To Go After Stephens Media, Media News, And Righthaven Principals
While it's true we need to allow some leeway when it comes to using an unusual or downright strange legal theory, if there is significant caselaw showing an issue is already decided, which there is when it comes to transferring copyrights, a lawyer should have a professional duty not to mislead the court by suggesting there isn't. Otherwise the legal system is a farce in which a party with the funds to pay a lawyer to make specious arguments for a few months or years has a decided advantage over the average person.
What Gibson did in setting up Righthaven was equivalent to an accountant trying to write off hookers and blow on a client's tax return. He could argue about his theories on tax law all he wants, but in the end he's held responsible for what he should know. Gibson should be held to the same standard. If he didn't know the copyright assignments weren't valid, as a lawyer he has a duty to do the basic research which would have made it clear. Either it was fraud or failure to meet his basic responsibilities. In either case he should be punished.
On the post: Paul Vixie Explains How PROTECT IP Will Break The Internet
Re: Re: Re: Re: Proxy or VPN illegal?
On the post: Paul Vixie Explains How PROTECT IP Will Break The Internet
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No there isn't. But the provision that makes it illegal for a server means DNSSEC won't ever see widespread use. If you read the original article Mike linked you'll understand the point better.
On the post: Paul Vixie Explains How PROTECT IP Will Break The Internet
Re: Re:
Or do you not even think about the censorship issue and only consider whether you have the right to fix the problem? That's what the people pushing PROTECT IP don't understand. The attitude most people will likely have is, "I have the right to make my internet work."
On the post: Paul Vixie Explains How PROTECT IP Will Break The Internet
Re: Re: Proxy or VPN illegal?
There's a price to be paid if we let them chase US internet users to using offshore DNS. It's inefficient and leaves too much opportunity for someone with malicious intentions. Suddenly there's no need to attack a DNS server to poison its cache for malicious purposes. Now someone can just setup their own server outside the US to provide the false information directly to the end user. You're essentially ceding any semblance of control over the security of DNS to unknown entities outside your borders.
What Mike didn't mention was Paul told me DNSSEC wouldn't be implemented in his organization's DNS server, BIND, if PROTEC IP becomes law. That means it wouldn't be available on the majority of DNS servers on the Internet. Even your offshore service won't get its benefits. You've fixed "your" Internet, but they have still effectively outlawed a security feature you should get the advantage of.
On the post: FCC Investigating Whether BART Cell Service Shut Off Was A Violation Of Federal Law
Re: Actually....
On the post: Rojadirecta Argues That The Justice Department Is Making Up Laws; Has No Legal Basis To Forfeit Its Domain
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On the post: Rojadirecta Argues That The Justice Department Is Making Up Laws; Has No Legal Basis To Forfeit Its Domain
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On the post: Judge Says Making It Harder To Exercise Free Speech Does Not Create Substantial Hardship
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On the post: Judge Says Making It Harder To Exercise Free Speech Does Not Create Substantial Hardship
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On the post: Judge Says Making It Harder To Exercise Free Speech Does Not Create Substantial Hardship
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Once again, from Marbury v Madison
On the post: Judge Says Making It Harder To Exercise Free Speech Does Not Create Substantial Hardship
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On the post: Judge Says Making It Harder To Exercise Free Speech Does Not Create Substantial Hardship
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If a law cannot be interpretted in such a way that it conforms to Supreme Court precedent, it is unconstitutional. If it can be interpreted in a way that it's consistent with those precedents, it must be. The Constitution, and by extension the Supreme Court's interpretation of the Constitution, trump all other considerations. And yes, that includes Congressional intent, an issue which is specifically addressed in Marbury v Madison.
Existing precedent from the Supreme Court states that the government must prove a compelling public interest for prior restraint. Fort Wayne Books v Indiana specifically says probable cause does not qualify as proof. Since the law states there are exceptions, either violating the Constitution must be an exception or the law is unconstitutional. In either case the seizure is unconstitutional.
The only unilateral decision being talked about here is the one this judge made to ignore the Supreme Court, and by extension the Constitution.
On the post: Judge Says Making It Harder To Exercise Free Speech Does Not Create Substantial Hardship
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On the post: Another View Of The Netflix Price Hike: It's Speeding Up The Shift To Online Streaming
I would be shocked if more than a tiny percentage of Netflix customers would consider streaming an adequate substitute for their disc selection. And by tiny I mean 5% would be generous. I think that number needs to be at least 20% - 25% before this sort of move makes sense from a customer retention perspective.
On the post: Did The AP Claim Copyright On Public Domain NASA Pictures?
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On the post: Did The AP Claim Copyright On Public Domain NASA Pictures?
On the post: Sony's Insurer Says It Shouldn't Have To Pay For Cost Of PlayStation Network Hack
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On the post: Aaron Swartz Indictment Leading People To... Upload JSTOR Research To File Sharing Sites
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