I, for one, agree that copyright infringement (however labelled) is presently illegal. That is a travesty, but I think Mike and others would agree that it is the (bad, ill-advised, poorly drafted) law of the land.
I do _not_ agree that it is "wrong." Clearly, your normative framework is different from mine. Mine has the benefit of all of human history less the last 200 years to recommend it, among other things, but we can agree to disagree.
As for whether copyright infringement is "theft" - it clearly is not, because "theft" requires depriving the owner of ownership. The copyright industries have waged an apparently deliberate war on the English language, attempting to inflate the rhetoric. There are some who have a problem with this. In politics, the words you use can make a difference.
How do we know it was used in the commission of a crime? Because bunglehead says it belonged to a hacker?
Decode "parties involved in the case who received it as compensation". I'm guessing this means one of two things: either it was received as part of a judgment by some company that sued the "hacker," or the "hacker" paid his lawyer with it. Either way, that person then gave it to the idiot.
This is too bad, but not hypocrisy. The same could be done (without raising claims of piracy) with a CD and perhaps with non-DRM digital music (do we know if the first sale doctrine applies to an MP3?).
If you are right that Sony violated the contract, then there was no further contract. A prior breach by one party excuses future performance by the other. If, for instance, Sony failed to pay royalties the artist was owed then the artist could refuse to permit copying and distribution of his copyrighted works.
To me, the interesting question is who owns the copyright in these songs. If they were created as works made for hire, then Sony does. If they were created as works for the artist subject to a prior assignment to Sony, then a whole new family of issues arises. For instance, if the contract is governed by California contract law or is enforceable in the federal courts located in California, prior assignments may themselves be unenforceable.
In other words, notwithstanding any contract it seems possible to me that the artist is on solid ground. It will depend on a lot of facts that the story does not reveal.
Not that I disagree that it should be, but who says it is legal to rip CDs for personal use in the U.S.? It seems obvious that it should be, but has a court ruled that way yet? The list of things that copyright obviously permits that have nonetheless been held to be infringing is long and scary.
Perhaps there are, although I've never heard of it being tested. If a company uses deceptive practices in order to sell a good or service, it may be actionable under some state's "Little FTC Act," often called a "Consumer Protection and Unfair Trade Practices Act." These are state codifications of the federal FTC Act and Lanham Act, but unlike those acts they often provide fairly substantial private remedies.
In other words, if your state is on its game you can sue companies that lie in order to convince you to buy things. Like accounts of football games.
With due respect - the contract was for the sale of $6,000 of agar plates, hardly the level of stuff that gets sent to the legal department for review. PDC sued for $75k because that was its _injury_, not the purchase price of the goods. Indeed, the second half of the decision is all about this distinction, denying summary judgment on the question of whether damages should be limited under the contract to the $6k purchase price (rather than the $75k of damages).
The limitation of damages clause is standard in consumer contracts, but atypical in large commercial transactions. Indeed, the opposite (an indemnification provision) is often included in large commercial transactions (where the buyer has more power).
I do not have a problem with legalese. Contracts should be in legalese - because lawyers draft them and will be called upon to interpret them.
The problem is that these are classic adhesion contracts (that is, "take it or leave it" contracts). At common law, adhesion contracts were disfavored, and often unenforceable. This is because contracts classically require an offer, an acceptance (ie - a negotiation), and a mutual intention to be bound. They are supposed to be a "bargained-for exchange". Adhesion contracts lack negotiation and bargaining.
Worse, they are unavoidable. The argument has been that they are not bad because if you do not like Amazon's terms, you can always shop at Walmart. The trouble is, Walmart has the same terms.
Imagine if your grocery store handed you "Terms and Conditions" every time you went to buy milk. You would find it ridiculous, particularly if they were 25 pages long. You might stomp out (sans milk) and go across the street to the competitor. Imagine finding that they had them, too.
Now imagine that they _don't_ have them - instead, they have a sign behind the register that says, "By shopping here you agree to certain terms and conditions. Please ask a manager if you would like to read the terms and conditions." On page 17 of the terms and conditions that the manager keeps in his office is an arbitration clause that provides that any dispute concerning your purchase (however small) must be resolved by binding arbitration before a three-arbitrator panel in the grocery chain's home state (which is not your state). When you get overcharged 37c for your milk, should you be forced to go to arbitration? 700 miles away?
How is enforcing that agreement good for society? Remember, law exists for society, not just for grocery stores or websites.
Wish I could delete this one. As I think about it, it is wrong wrong wrong.
Publishers *do* provide something of value, their editorial services. Not just individual edits on individual books, either: part of the value of a good imprint is that it assures the buying public that the quality of the work is similar to other authors in that publisher's stable. In other words, being picked up by a publisher let's an author borrow a valuable trademark.
I don't know how Amazon does it. A lot of distribution channels actually just pay royalties. They negotiate a rate at which they will try to sell the book, but if that doesn't work they'll charge what they want.
In any event, Amazon is like Walmart: it has so much power in the marketplace that it can dictate pricing, particularly to small publishers.
But the real point here is that Amazon is the publisher of eBooks. Like senshikaze said, the publisher is just a middleman here. In a better world, Amazon would pay the author and the publisher (who contributes nothing,) would get out of the way. And if that means that publishers go out of business and have to find more productive careers, my heart will not break.
Henry Ford displaced an entire generation of carriage makers. As sad as it is that that industry died out, the economy was not worse off because it did.
Here here. If copyright is advisable (big if,) rigid formalities are probably bad. There frankly is little need for a bright-line rule. Instead, second-users should be held to a reasonability standard in determining whether authors have opted in to copyright. In other words, only punish culpable infringement.
In any event, the two prior questions are more important - is copyright valuable? If so, what is an appropriate term of copyright?
I mostly agree - that is not what CC is for. But I do not think Copycense is complaining that CC is not its messiah. I think it is complaining that CC doing what CC was designed to do frustrates efforts to change copyright in ways it needs to be changed.
Congress made a really, embarrassingly bad copyright law. Rather than confront that and fix it, Congress has permitted the court (in the case of software copyrights,) and private individuals (CC and GNU and others) to try to mitigate the damage. If society ever felt the full brunt of Congress's screwup, it would immediately demand that Congress stop dragging its feet.
I made this argument myself to James Boyle some years ago. I have come around to what I understood his view to be - if you are against killing, killing a few to save a lot is not an acceptable solution. The better, and more compassionate, response is harm reduction. CC is about harm reduction.
I should clarify - I agree with AC: harassment is already illegal. On the other hand, it doesn't always do enough - a protective order would have been useless and redundant after Megan was dead. The criminal law should be developed to account for the increased ability to people to hurt each other with the Internet. But the criminal conduct was _not_ violating some website Terms of Service, it was taunting and bullying. The prosecutors' overreaching theory was stupid. The judge did right.
This is an interesting sticky thicket. If Drew had been seeking money (instead of just to embarrass or harass or whatever,) this certainly would have been a wire fraud and there would have been a (more rational) federal prosecution. That the harm was not financial doesn't make much of a difference to me.
Criminal law is not well-developed to deal with problems like this (yet). The civil law is - no doubt, if it hasn't already happened, the parents or estate will appropriately file an action against Drew and the various coconspirators for privacy torts, wrongful death, and the like.
It may depend on what we care about regarding innovation. I think you are probably right that innovation continues after the grant of patent, but it is not obvious that the new patents actually help society (because they are often just used to keep competitors from leapfrogging the original patentable matter). It would be fascinating to see what percentage of refinement patents actually get brought to market in a substantial way, and the lag between the submission of an application (which theoretically marks the time of invention,) and the date brought to market.
How does the model account for the publication of innovation? The real hurdle patents are designed to leap is not incentive to innovate (for which you, rightly note, they are poorly conceived,) but the incentive to share the results of innovation. The patent system says, "give us detailed plans, sufficient for anyone skilled in the art to replicate your innovation, and we'll give you a monopoly for a limited time". Without patent, the argument goes, inventors have every reason to keep as much of their innovation secret as they can (because trade secret protection is pretty good).
((Note that copyright since the '76 Act and Berne Convention is different. It provides a monopoly of only theoretically limited duration even for works that never see the light of day. It exists to provide incentives to create, and it is shamefully counterproductive at doing so.))
This is not in defense of patents, but I wonder how the model handles the transmission of information about new inventions in a commons system. If it is a commons on the model of the genome project, linux patent commons, or eco patent commons, then it requires a system of registration for new inventions (ie - a patent system) as a substrate. The "commons" is just an agreement not to enforce those patents. If it works on a different model, like a true free-market model, patents are unnecessary but you may need something to replace them. For driving innovation by making prior inventions available, it helps if reverse engineering is easy (and permissible). Absent easy reverse engineering, it may be important to have a system like patent for registration and publication of inventions.
In fairness, it should be noted that what was called "disgusting" was not the comments, but the departure from an established party line. On the other hand, such a departure is only disgusting if you have invested in the party line. Willaert's response sounds a bit like, "We paid for the entire party, and now some ingrateful members are talking back?! Disgusting!"
On the post: What Happened To 'If You Didn't Pay For It, It's Stealing'?
Re:
I do _not_ agree that it is "wrong." Clearly, your normative framework is different from mine. Mine has the benefit of all of human history less the last 200 years to recommend it, among other things, but we can agree to disagree.
As for whether copyright infringement is "theft" - it clearly is not, because "theft" requires depriving the owner of ownership. The copyright industries have waged an apparently deliberate war on the English language, attempting to inflate the rhetoric. There are some who have a problem with this. In politics, the words you use can make a difference.
On the post: What Happened To 'If You Didn't Pay For It, It's Stealing'?
Re: Re: Er?
Decode "parties involved in the case who received it as compensation". I'm guessing this means one of two things: either it was received as part of a judgment by some company that sued the "hacker," or the "hacker" paid his lawyer with it. Either way, that person then gave it to the idiot.
This is too bad, but not hypocrisy. The same could be done (without raising claims of piracy) with a CD and perhaps with non-DRM digital music (do we know if the first sale doctrine applies to an MP3?).
On the post: Why Doesn't Century 21 Canada Want More People Viewing Its Real Estate Listings?
Re:
On the post: Singer Claims Sony Music 'Pirated' His Songs; Has Police Raid Their Offices
Re: HIs contract
To me, the interesting question is who owns the copyright in these songs. If they were created as works made for hire, then Sony does. If they were created as works for the artist subject to a prior assignment to Sony, then a whole new family of issues arises. For instance, if the contract is governed by California contract law or is enforceable in the federal courts located in California, prior assignments may themselves be unenforceable.
In other words, notwithstanding any contract it seems possible to me that the artist is on solid ground. It will depend on a lot of facts that the story does not reveal.
On the post: Recording Industry, Japanese Gov't Work To Break Your Mobile Phone If You Listen To Unauthorized Music
Re: Re:
On the post: IBM Claims Software Patents Promoted Open Source Software?
Re:
Unfortunatley, only slightly.
On the post: MLB Refuses To Give Permission To Guy To Describe Game To A Friend
Re: Wrongs
In other words, if your state is on its game you can sue companies that lie in order to convince you to buy things. Like accounts of football games.
On the post: Hyperlinked Contract Terms Are Enforceable
Re: where in the transaction is the ToS
The limitation of damages clause is standard in consumer contracts, but atypical in large commercial transactions. Indeed, the opposite (an indemnification provision) is often included in large commercial transactions (where the buyer has more power).
On the post: Hyperlinked Contract Terms Are Enforceable
The problem is that these are classic adhesion contracts (that is, "take it or leave it" contracts). At common law, adhesion contracts were disfavored, and often unenforceable. This is because contracts classically require an offer, an acceptance (ie - a negotiation), and a mutual intention to be bound. They are supposed to be a "bargained-for exchange". Adhesion contracts lack negotiation and bargaining.
Worse, they are unavoidable. The argument has been that they are not bad because if you do not like Amazon's terms, you can always shop at Walmart. The trouble is, Walmart has the same terms.
Imagine if your grocery store handed you "Terms and Conditions" every time you went to buy milk. You would find it ridiculous, particularly if they were 25 pages long. You might stomp out (sans milk) and go across the street to the competitor. Imagine finding that they had them, too.
Now imagine that they _don't_ have them - instead, they have a sign behind the register that says, "By shopping here you agree to certain terms and conditions. Please ask a manager if you would like to read the terms and conditions." On page 17 of the terms and conditions that the manager keeps in his office is an arbitration clause that provides that any dispute concerning your purchase (however small) must be resolved by binding arbitration before a three-arbitrator panel in the grocery chain's home state (which is not your state). When you get overcharged 37c for your milk, should you be forced to go to arbitration? 700 miles away?
How is enforcing that agreement good for society? Remember, law exists for society, not just for grocery stores or websites.
On the post: Jason Mraz Listens To His Fans In Picking 'I'm Yours' As A Hit Single
Mraz is sort of the anti-KISS, no?
On the post: Publishers Lashing Out At eBooks
Re: Re: Amazaon charges???
Publishers *do* provide something of value, their editorial services. Not just individual edits on individual books, either: part of the value of a good imprint is that it assures the buying public that the quality of the work is similar to other authors in that publisher's stable. In other words, being picked up by a publisher let's an author borrow a valuable trademark.
_That_ is worth having in the marketplace.
On the post: Publishers Lashing Out At eBooks
Re: Amazaon charges???
In any event, Amazon is like Walmart: it has so much power in the marketplace that it can dictate pricing, particularly to small publishers.
But the real point here is that Amazon is the publisher of eBooks. Like senshikaze said, the publisher is just a middleman here. In a better world, Amazon would pay the author and the publisher (who contributes nothing,) would get out of the way. And if that means that publishers go out of business and have to find more productive careers, my heart will not break.
Henry Ford displaced an entire generation of carriage makers. As sad as it is that that industry died out, the economy was not worse off because it did.
On the post: Europe Pushing For An Orphan Works Law Also
Re: "Formality" copyrights
In any event, the two prior questions are more important - is copyright valuable? If so, what is an appropriate term of copyright?
On the post: Is Creative Commons Bad For Copyright?
Re: Shooting at the wrong target
Congress made a really, embarrassingly bad copyright law. Rather than confront that and fix it, Congress has permitted the court (in the case of software copyrights,) and private individuals (CC and GNU and others) to try to mitigate the damage. If society ever felt the full brunt of Congress's screwup, it would immediately demand that Congress stop dragging its feet.
I made this argument myself to James Boyle some years ago. I have come around to what I understood his view to be - if you are against killing, killing a few to save a lot is not an acceptable solution. The better, and more compassionate, response is harm reduction. CC is about harm reduction.
On the post: Lori Drew Case Officially Dropped
Re:
On the post: Lori Drew Case Officially Dropped
Criminal law is not well-developed to deal with problems like this (yet). The civil law is - no doubt, if it hasn't already happened, the parents or estate will appropriately file an action against Drew and the various coconspirators for privacy torts, wrongful death, and the like.
On the post: Yet Another Study Shows That Patents Lead To Sub-Optimal Innovation
Re:
On the post: Yet Another Study Shows That Patents Lead To Sub-Optimal Innovation
((Note that copyright since the '76 Act and Berne Convention is different. It provides a monopoly of only theoretically limited duration even for works that never see the light of day. It exists to provide incentives to create, and it is shamefully counterproductive at doing so.))
This is not in defense of patents, but I wonder how the model handles the transmission of information about new inventions in a commons system. If it is a commons on the model of the genome project, linux patent commons, or eco patent commons, then it requires a system of registration for new inventions (ie - a patent system) as a substrate. The "commons" is just an agreement not to enforce those patents. If it works on a different model, like a true free-market model, patents are unnecessary but you may need something to replace them. For driving innovation by making prior inventions available, it helps if reverse engineering is easy (and permissible). Absent easy reverse engineering, it may be important to have a system like patent for registration and publication of inventions.
On the post: Recording Industry Lobbyists Says Politicians Worried About User Rights Are 'Disgusting'?
On the post: This Doesn't Bode Well: FCC Can't Figure Out Online Streaming For Its Own Meetings
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