But that WAS the issue Mike raised. AC is right on this one - Mike said it was strange that the school was telling students that having a WiFi router is a sign of infringement. AC agreed with Markus that the wording was poor, but the underlying message is sound - because we (BU, a government institution) have misinterpreted the law to require us to violate our students' right to conduct internet activity anonymously, we will blame you (student with a router) if someone hides behind your IP to do something nefarious. That is a good and useful headsup from the school. AC is correct that that is a good and useful headsup from the school.
At least at the moment, this is not the state of the law in the United States. Since Dastar Corp. v. Twentieth Century Fox, 539 U.S. 23 (2003), trademark law has not been able to be used to enforce rights on a copyrighted work once that work passes into the public domain. So Michael can look forward to his Mickey porn, because that porn can be based on and derived from works as they pass out of copyright, and Disney will not be able to use the Lanham Act to stop it.
But: when the original work introducing a character passes into the public domain, is the _character_ (as it has developed over the years) now in the public domain? Surely not, or nothing would ever be subject to copyright (every work is derivative of at least one earlier work). So you could make Steamboat's Willy or whatever when the copyright term finally ended (if it does,) but that would not imply that you could also make Fantasia (de Menage a Trois) until a few more decades had passed.
That is not what he was studying. But other authors have done so, and uniformly concluded that allowing a healthy and vibrant public domain to develop leads to increased opportunities for creation. For instance, in Europe the data within databases can be subject to copyright. In the US it cannot. The purpose of this innovation in European law was to create incentives for European database creators to develop more competitive commercial databases. The experiment has failed - Europe now lags the US by an even greater margin in commercial database production. Moreover, because different European countries implemented the database directive at different times, you can see the effect of the directive itself as a natural experiment, while controlling for things like social values, educational attainment, dollars spent on research, etc. The data strongly suggests that copyrighting data has led to a significant decrease in the competitiveness of European database development.
To the degree the end goal is to encourage progress in the useful arts and sciences, copyright has not proven itself up to the task and mounting evidence suggests that it is counterproductive.
The copyright law is strange and mixed up. Even if you disregard any change since 1978 (and are thus considering 56-year copyright terms,) it was already pretty messed up. In other words, it is fundamentally flawed, excessive term length merely exacerbates and illustrates the problems. But the concept of a renewal term and termination of assignments are some of the only elements that actually encourage progress in the useful arts. Why again do we not like those?
Take a comic book (or, for that matter, any serialized work). Each issue is copyrighted. Say we are using a 56-year copyright term. After the first 28 years, the right to the renewal term belongs to the author's family. So they can now resell that right, say to a new publisher, who can create a new serial starting with (and derivative of) the issue in which she or he owns the rights.
But that need not kill off the first publisher: as long as they do not create any further works derivative of the first issue, they may continue to create works derivative of later coming issues in which they continue to own the rights (provided those issues are not themselves derivative of the first issue). So the renewal term (and concommitant termination right) permits there to be two "alternate universes" of derivative works. Has this been tested (for instance, by the assignee of the renewal term suing the original publisher for creating derivative works based on derivative works based on derivative works that eventually harken back to the original)?
Incidentally, renewals ended in 2005, which means termination claims for pre-1978 works should all be in or expired by 2010. Later-coming works have a 25- or 35-year one-shot termination. Those are the ones that Hollywood et al. are concerned about: not Superman, but maybe Manhunter.
This is why the Solomonic judge did a pretty good job (notwithstanding a stupid law). He allowed the heirs and devisees to grab the copyright to Action Comics #1. That's it, and he did not give them the copyright to the entire Superman canon. If they want to reissue that comic or create derivative works from it, they may. But they do not get the use of the rest of the Superman universe.
While I don't disagree much with the sentiment, there _is_ a good argument as to why the termination right should be in the heirs and devisees: in particular, knowing that you can provide a benefit to your offspring and theirs encourages you to innovate and create.
Note that someone late in their life or facing a terminal illness has no incentive to create from a copyright law that will only reward them in life, particularly if it seems to them likely that their work will not be published until after they are dead. (Which is not to say that they do not have other incentives, or that the incentive from copyright law is necessary or even that it is directly felt by most content creators.)
There are plenty of ways to take away the criminal's tools. Disregarding for a moment that shutting down DNS does not actually do so (it merely cuts down on dissemination, which may reduce his incentives for the criminal conduct,) and regardless of whether it is a proper action of government to seize domains on probable cause without process, here the government took away tools from people that it now admits were never even suspected of criminal activity.
The general rule is that the government has to have a legitimate purpose for every action it takes. When that action infringes any person's (including a criminal's) free speech rights, the government has to meet a higher threshold. Here, in order to impose a prior restraint on unobjectionable speech, the government would have to demonstrate that its actions were narrowly tailored (meaning the least restrictive alternative) to accomplishing a compelling government purpose. Wholesale domain seizures do not fit the bill. This is per se unconstitutional. That is a problem.
Wait, what?! You have a building full of innocent people's stuff, including their records and means of making a living. They played no role in the building owner's (allegedly) nefarious activities. Neither the building nor the innocent people's stuff is the product of the owner's (alleged) misconduct. The innocent people will potentially lose huge amounts of money for every day that their customers cannot find them. You can seal the owner's rooms in the building and stop his (alleged) misconduct without affecting anyone else in the building. Instead, you choose to seal the entire building, lock all of the doors and post a big sign on the building that says "everyone who worked or entered here was a child molester," send all incoming phone lines to an answering service where an automated attendant answers and says, "I'm sorry, but the person you are trying to reach cannot come to the phone because he or she is a child molester and has been apprehended by law enforcement," redirect the mail to an automated service that returns every message with a stamp reading, "Recipient is a child molester and is not entitled to receive mail," and refuse to give the innocent people access to their information or businesses.
That's reasonable? It does not even pass the sniff test for reasonability! In the real world, this clearly would be an unconstitutional taking without just compensation. It just as clearly would be libel or slander (depending on whether customers called or wrote,) but that would not be actionable because the government has not waived sovereign immunity for those torts.
I make no guarantee of being in my right mind, but I turn down interviews all the time and have never had occasion (or the flexibility) to kick myself after. They are typically a waste of time if you have no desire to work for the company. I sometimes try to kick myself if I deliberately waste my own time.
At some point, many people (particularly talented people who can afford to be choosey) learn that while having money is better than not, it is seldom worth giving up one's principles or happiness to get it, if only because it can be had elsewhere at a lower price.
Say MS permitted (and honored, contra Apple) the licenses it is banning. A developer writes something and applies a license that requires derivative works to supply their source and be redistributable free of charge. MS then takes the software, bundles it with DRM, and distributes it, thereby creating a derivative work.
Does MS now have to provide the source to its DRM tech? Must the resulting (DRM'd) software be redistributable without limit and free of charge?
I have no idea, and I'll bet MS has none either. But it does not give up much functionality to avoid the question entirely by simply banning such licenses outright.
Is there a facility to publish apps in the Marketplace without DRM at all?
We do not know if format shifting is infringement or not. It may depend on the intended use. Many (self included) feel pretty comfortable that format shifting for archival copying is probably fair use. But note that you are not merely copying when you format shift; you are also creating a derivative work. Your MP3 is not identical to the audio on the CD, even if it were not compressed. It is fixed in a different medium.
Consider: you read a work in French (which you read fluently). For giggles, you take the book and pen and paper and write an English translation. There is little question that your English manuscript is a copyright infringement. Isn't a translation from English to 1s and 0s (by way of scanning and OCR) the same sort of thing?
Also, this was not for personal use. An argument could be made that it was for scientific research or educational purposes, but it would be a bit thin: the fact is it was done as a publicity stunt, to show off how great IBM's AI program has become. Not sure what the fair use basis would be.
I find this to be a very strange argument, and I apologize in advance if I am not understanding it. We do not primarily charge public schools with protecting person or property so that people feel safe and secure. To the degree we do, I think it would be a very effective indictment of the system to note that it fails at that task, and that from time to time the system itself preys on kids. I think any rational person faced with that information would say, "at a minimum, we need to fix the system so that it is no longer predatory. We may need to scrap it altogether, and find a system that actually works without creating additional harm."
We _do_ primarily charge the TSA with protecting person and property. In fact, the TSA itself sees its mission to be to "protect[] the Nation's transportation systems to ensure freedom of movement for people and commerce." I think it is a telling indictment of the TSA to note that it fails to do that, and in fact preys on the people and commerce whose freedom it is supposed to be protecting. I think rational people faced with that information should say, "at a minimum, we need to fix the system so that it is no longer predatory. We may need to scrap it altogether, and find a system that actually works without creating additional harm." Couple the theft problems with the fact that even honest TSA agents are ineffective at actually increasing travel security, and the indictment seems fairly damning.
How is it that pointing out that the system not only doesn't work, but also causes additional harm fails to contribute that the system should be substantially overhauled? That is not a rhetorical question - I honestly do not understand your argument.
Say you are the captain of a 757, and someone picks up the phone in the main cabin and tells your navigator that they are killing crew and passengers, and will continue to do so until you open the cockpit door. Knowing that this person is a self-proclaimed murderer, and guessing that giving him control of the plane will likely result in the death of everyone on it as well as people on the ground, how would you react? I would tell the navigator to hangup, call in the threat to the nearest airport, circle until the airport had plenty of police on the runway, then set down. I would not open the cockpit door until someone on the radio told me the plane was empty and it was safe to come out. And at some point, I would probably assume that the 200 non-terrorists on the plane were making some kind of effort to stop the guy trying to get into the cockpit with a plastic spork.
Locking the door does not end all opportunities for terrorism, but it increases the cost of pulling one off. You can't do it with box cutters, you need to smuggle something more on board. Not impossible, but not as easy as it was.
You understand how this defeats your point, right? Mike says TSA is basically a waste and ineffectual, and then adds that it also contains bad apples that steal. The few bad apples add to his indictment of what he views as a corrupt and ineffective system. So that seems consistent.
On the other hand, he believes copyright protection to be too strong and inefficient, industries that rely on it to make ends meet outdated and blind, and the technology neutral but potentially very, very good. Then he notes that it is also capable of being used badly. Nothing inconsistent there, either: the few bad apples merely prove up the neutrality of the technology and the ineffectiveness of copyright protection. (Just like rampant theft by government police officers with a right to detain and sequestor personal property proves the ineffectiveness of oversight and "TSA-approved" luggage locks).
That some lawyer had done a really, fabulously bad job.
Judges are paid to adjudicate. They need to know how to adjudicate. But they do not need to know the technical details of every case brought before them in order to do that. The judge is just supposed to weigh the arguments and apply the law.
Note that your requirement that the decider of fact understand technology carries a scary implication: accused violators of criminal laws pertaining to computers should not have jury trials. But that can't be right.
When an issue arises during litigation that is too technical for the judge, the parties should bring in experts who understand the issue to parse it and explain it. If Hotz's lawyers failed to do that and it resulted in a bad ruling, shame on them. That is not why the judge screwed up, here. She screwed up because she applied the wrong standard incorrectly. But that was not because she did not understand how the tubes connect to the webs, it was because she got bamboozled by flashy advocacy.
I'll bite, joe. I agree that there is no equal protection problem by nature of regulating a PS3 versus an iPhone, and I do not particularly care if the order is poorly or expertly worded to force Holtz to take down his posts on the Internet. But there are still serious problems with this order, and the law it seeks to enforce.
This is an ex parte TRO. Sony has not shown that Holtz did anything wrong. They have demonstrated to the judge's satisfaction that they will be irreparably injured if the code gets out (too late!) and that they are likely to succeed on the merits of the case. But they made that showing without briefing by Holtz's lawyers - Holtz had notice, but no meaningful opportunity to be heard. That happens later, at a show cause hearing. This is an impoundment and gag order prior to that hearing. It is not clear that Judge Illston even had the benefit of a First Amendment argument, let alone the time to consider it.
Sony argues that it is a violation of the DMCA for Holtz to gain access to root keys at all. The DMCA makes it illegal to use circumvention devices to gain unauthorized access to copyrighted works. There is no evidence that Holtz did so - he has no more access to the Playstation OS than he had before, its just he now can enable it to do things that it would not previously do. That is, he has gained access to functionality that was already present, but not to any copyrighted work. There are limits, including a right to reverse engineer, on the anti-circumvention provisions of the DMCA. It seems as if the case against Holtz is actually not very strong at all. In light of that, doesn't it seem inappropriate for the Court to issue a gag order suspending his right to speak? Doesn't it violate the TRO standard, when the TRO cannot remedy the alleged irreparable harm (because it has already been done)?
That's silly, misguided, and absolutely unsupported. Very few judges have ever murdered anyone. And yet many of them oversee murder trials. It would be an awful world in which we required judges to commit crimes before they could sit on criminal trials. It would be an unfair world in which we required them to be criminal lawyers (either adopting the views of the accused in every case or of the state). Far better for them to know about trials, about litigation more generally, about the rules of evidence and courtroom conduct, and learn the subject-matter of the dispute without carrying in their own preconceived notions and opinions. It is a Good Thing that judges have not already thought through issues and researched them before they sit behind the bench.
That said, rhett is exactly correct that the lawyers get paid to explain the issues, legal and equitable, and to advocate for their client. Here, they failed (which happens to the best, from time to time). It may be that they were up against a brick wall - the judge, although lacking any preconceptions, simply was incapable of understanding the issues. That happens from time to time, too. Or it may be that they simply backed off the good arguments and appealed to some crappy one.
They could have argued that the DMCA, as applied in this case, is unreasonably vague and that it chills First Amendment rights, and that there is no evidence that Hotz breached a contract, and that providing a means for other individuals to breach a contract has never been actionable unless it actually induces a breach, and that reverse engineering is generally protected, even from the DMCA. They could have pointed out that there are really two allegations of wrongdoing that have to be unwound: creating the bad program, and distributing it. They could have pointed out that the first is protected and the second is a pure speech act, and it is only by conflating the two into a single bad act that Sony is able to make this look like something the government could prohibit. Perhaps they did point those things out and the judge just did not get it.
I have been ignoring this issue, but if what Barnett says is true it seems as if due process is not the problem. No one is being denied a liberty right - a full blown trial is probably unnecessary. A judge determines if probable cause exists, and if it does issues a seizure warrant. That is appropriate process. Imagine if, instead of domain names, we were talking about cocaine. Should the cops have to wait until the conclusion of a trial before seizing cocaine pursuant to a seizure warrant? What about the dealer's car (with smuggling compartments in the doors,) or the boat he bought with drug money? If they want an adversarial hearing, they can move for return of property.
It seems to me the process is fine. The trouble is the action itself. Even if criminal copyright infringement is taking place on a website pointed to with a particular domain name, which seems far-fetched here, seizure of the name seems inappropriate. For starters, the names were not used in the commission of the crime. They certainly do not provide evidence of the crime. And they were not purchased at all, let alone purchased with the proceeds of the crime.
ICE's best argument is that the names were used to infringe. It has been a long time since I researched it, and I frankly do not remember if a gun that is present at the scene, but never displayed or referred to, is "used in the commission of a crime". Domain names seem to me to be in a similar position - they do not actually further the willful infringement. They do not assist in copying, or even in publishing, a copyrighted work. At most they assist in marketing, and then only if they call out the infringed work - generic names, like "StolenMovies.com" or "torrent-finder.com" do little if any work at all.
Agreed. We all must follow copyright law, because it is the law of the land, but we should acknowledge that it is broken. Griggs got screwed as much by bad (and unclear) law as by herself. This would be easier to see if Griggs' stupid mistake was instead an act of civil disobedience, but Gaudio was not hurt by Griggs' conduct, and nothing so terrible happened here to anyone. Gaudio's moral rights were respected. It was only her monopoly on copying and publication that was infringed, and that monopoly is ill-conceived, badly motivated, and poorly implemented.
Instead of focussing on Griggs' bad writing and attitude, we might point out that this fairly innocent act of infringement shut down a magazine. Copyright destroys progress in the useful arts, it does not ensure it.
If there's competition and customers want consistent rates, somebody will choose to compete by keeping their rates consistent. No regulation necessary.
This feels wrong. It assumes rate consistency, transparency, and repeat participation (of consumers) in the marketplace, none of which may be present in a market that largely serves guests to the market.
There are obvious solutions, some of which would almost certainly be implemented, like an option to buy cab service (say on a punch card) before travel after researching rates.
On the post: Boston College Tells Students That Using A Wireless Router Is A Sign Of Copyright Infringement
Re: Re: Re: Re: Re: Re:
On the post: Debunking The Claim That Bad Things Happen When Works Fall Into The Public Domain
Re: Re: Disney Extensions
But: when the original work introducing a character passes into the public domain, is the _character_ (as it has developed over the years) now in the public domain? Surely not, or nothing would ever be subject to copyright (every work is derivative of at least one earlier work). So you could make Steamboat's Willy or whatever when the copyright term finally ended (if it does,) but that would not imply that you could also make Fantasia (de Menage a Trois) until a few more decades had passed.
On the post: Debunking The Claim That Bad Things Happen When Works Fall Into The Public Domain
Re: Re: Re: Re: Re:
To the degree the end goal is to encourage progress in the useful arts and sciences, copyright has not proven itself up to the task and mounting evidence suggests that it is counterproductive.
On the post: Heirs Of Superman Creators Appeal To Try To Get The Half Of The Baby The Judge Didn't Give Them
Why again don't we like termination rights?
Take a comic book (or, for that matter, any serialized work). Each issue is copyrighted. Say we are using a 56-year copyright term. After the first 28 years, the right to the renewal term belongs to the author's family. So they can now resell that right, say to a new publisher, who can create a new serial starting with (and derivative of) the issue in which she or he owns the rights.
But that need not kill off the first publisher: as long as they do not create any further works derivative of the first issue, they may continue to create works derivative of later coming issues in which they continue to own the rights (provided those issues are not themselves derivative of the first issue). So the renewal term (and concommitant termination right) permits there to be two "alternate universes" of derivative works. Has this been tested (for instance, by the assignee of the renewal term suing the original publisher for creating derivative works based on derivative works based on derivative works that eventually harken back to the original)?
Incidentally, renewals ended in 2005, which means termination claims for pre-1978 works should all be in or expired by 2010. Later-coming works have a 25- or 35-year one-shot termination. Those are the ones that Hollywood et al. are concerned about: not Superman, but maybe Manhunter.
On the post: Heirs Of Superman Creators Appeal To Try To Get The Half Of The Baby The Judge Didn't Give Them
Re: Superman heirs are up in the night.
On the post: Heirs Of Superman Creators Appeal To Try To Get The Half Of The Baby The Judge Didn't Give Them
Re: Heirs???
Note that someone late in their life or facing a terminal illness has no incentive to create from a copyright law that will only reward them in life, particularly if it seems to them likely that their work will not be published until after they are dead. (Which is not to say that they do not have other incentives, or that the incentive from copyright law is necessary or even that it is directly felt by most content creators.)
On the post: Defending The Indefensible: Lawyers Who Love Loopholes Ignoring Serious Constitutional Issues In Domain Seizures
Re:
The general rule is that the government has to have a legitimate purpose for every action it takes. When that action infringes any person's (including a criminal's) free speech rights, the government has to meet a higher threshold. Here, in order to impose a prior restraint on unobjectionable speech, the government would have to demonstrate that its actions were narrowly tailored (meaning the least restrictive alternative) to accomplishing a compelling government purpose. Wholesale domain seizures do not fit the bill. This is per se unconstitutional. That is a problem.
On the post: Defending The Indefensible: Lawyers Who Love Loopholes Ignoring Serious Constitutional Issues In Domain Seizures
Re: Re: Re: Re: Re:
That's reasonable? It does not even pass the sniff test for reasonability! In the real world, this clearly would be an unconstitutional taking without just compensation. It just as clearly would be libel or slander (depending on whether customers called or wrote,) but that would not be actionable because the government has not waived sovereign immunity for those torts.
On the post: Top Hacker Rejects Job Offer From Sony Over PS3 Jailbreak Legal Strategy
Re: Not smart.
At some point, many people (particularly talented people who can afford to be choosey) learn that while having money is better than not, it is seldom worth giving up one's principles or happiness to get it, if only because it can be had elsewhere at a lower price.
On the post: Microsoft Accidentally Bans Its Own License From App Store?
Would compliance with such a license hurt MS?
Does MS now have to provide the source to its DRM tech? Must the resulting (DRM'd) software be redistributable without limit and free of charge?
I have no idea, and I'll bet MS has none either. But it does not give up much functionality to avoid the question entirely by simply banning such licenses outright.
Is there a facility to publish apps in the Marketplace without DRM at all?
On the post: Did Watson Succeed On Jeopardy By Infringing Copyrights?
Re: Format Shifting?
Consider: you read a work in French (which you read fluently). For giggles, you take the book and pen and paper and write an English translation. There is little question that your English manuscript is a copyright infringement. Isn't a translation from English to 1s and 0s (by way of scanning and OCR) the same sort of thing?
Also, this was not for personal use. An argument could be made that it was for scientific research or educational purposes, but it would be a bit thin: the fact is it was done as a publicity stunt, to show off how great IBM's AI program has become. Not sure what the fair use basis would be.
On the post: TSA Agents Caught Stealing From Passengers & Helping Subordinates Steal As Well
Re: Re: Re: Re: Re:
We _do_ primarily charge the TSA with protecting person and property. In fact, the TSA itself sees its mission to be to "protect[] the Nation's transportation systems to ensure freedom of movement for people and commerce." I think it is a telling indictment of the TSA to note that it fails to do that, and in fact preys on the people and commerce whose freedom it is supposed to be protecting. I think rational people faced with that information should say, "at a minimum, we need to fix the system so that it is no longer predatory. We may need to scrap it altogether, and find a system that actually works without creating additional harm." Couple the theft problems with the fact that even honest TSA agents are ineffective at actually increasing travel security, and the indictment seems fairly damning.
How is it that pointing out that the system not only doesn't work, but also causes additional harm fails to contribute that the system should be substantially overhauled? That is not a rhetorical question - I honestly do not understand your argument.
On the post: TSA Agents Caught Stealing From Passengers & Helping Subordinates Steal As Well
Re:
Locking the door does not end all opportunities for terrorism, but it increases the cost of pulling one off. You can't do it with box cutters, you need to smuggle something more on board. Not impossible, but not as easy as it was.
On the post: TSA Agents Caught Stealing From Passengers & Helping Subordinates Steal As Well
Re: Re: Re:
On the other hand, he believes copyright protection to be too strong and inefficient, industries that rely on it to make ends meet outdated and blind, and the technology neutral but potentially very, very good. Then he notes that it is also capable of being used badly. Nothing inconsistent there, either: the few bad apples merely prove up the neutrality of the technology and the ineffectiveness of copyright protection. (Just like rampant theft by government police officers with a right to detain and sequestor personal property proves the ineffectiveness of oversight and "TSA-approved" luggage locks).
On the post: The PS3 Hack Injunction Shows The Problems Of Judges Who Don't Understand Technology
Re: Re: Re: Re:
Judges are paid to adjudicate. They need to know how to adjudicate. But they do not need to know the technical details of every case brought before them in order to do that. The judge is just supposed to weigh the arguments and apply the law.
Note that your requirement that the decider of fact understand technology carries a scary implication: accused violators of criminal laws pertaining to computers should not have jury trials. But that can't be right.
When an issue arises during litigation that is too technical for the judge, the parties should bring in experts who understand the issue to parse it and explain it. If Hotz's lawyers failed to do that and it resulted in a bad ruling, shame on them. That is not why the judge screwed up, here. She screwed up because she applied the wrong standard incorrectly. But that was not because she did not understand how the tubes connect to the webs, it was because she got bamboozled by flashy advocacy.
On the post: The PS3 Hack Injunction Shows The Problems Of Judges Who Don't Understand Technology
Re:
This is an ex parte TRO. Sony has not shown that Holtz did anything wrong. They have demonstrated to the judge's satisfaction that they will be irreparably injured if the code gets out (too late!) and that they are likely to succeed on the merits of the case. But they made that showing without briefing by Holtz's lawyers - Holtz had notice, but no meaningful opportunity to be heard. That happens later, at a show cause hearing. This is an impoundment and gag order prior to that hearing. It is not clear that Judge Illston even had the benefit of a First Amendment argument, let alone the time to consider it.
Sony argues that it is a violation of the DMCA for Holtz to gain access to root keys at all. The DMCA makes it illegal to use circumvention devices to gain unauthorized access to copyrighted works. There is no evidence that Holtz did so - he has no more access to the Playstation OS than he had before, its just he now can enable it to do things that it would not previously do. That is, he has gained access to functionality that was already present, but not to any copyrighted work. There are limits, including a right to reverse engineer, on the anti-circumvention provisions of the DMCA. It seems as if the case against Holtz is actually not very strong at all. In light of that, doesn't it seem inappropriate for the Court to issue a gag order suspending his right to speak? Doesn't it violate the TRO standard, when the TRO cannot remedy the alleged irreparable harm (because it has already been done)?
On the post: The PS3 Hack Injunction Shows The Problems Of Judges Who Don't Understand Technology
Re: Re:
That said, rhett is exactly correct that the lawyers get paid to explain the issues, legal and equitable, and to advocate for their client. Here, they failed (which happens to the best, from time to time). It may be that they were up against a brick wall - the judge, although lacking any preconceptions, simply was incapable of understanding the issues. That happens from time to time, too. Or it may be that they simply backed off the good arguments and appealed to some crappy one.
They could have argued that the DMCA, as applied in this case, is unreasonably vague and that it chills First Amendment rights, and that there is no evidence that Hotz breached a contract, and that providing a means for other individuals to breach a contract has never been actionable unless it actually induces a breach, and that reverse engineering is generally protected, even from the DMCA. They could have pointed out that there are really two allegations of wrongdoing that have to be unwound: creating the bad program, and distributing it. They could have pointed out that the first is protected and the second is a pure speech act, and it is only by conflating the two into a single bad act that Sony is able to make this look like something the government could prohibit. Perhaps they did point those things out and the judge just did not get it.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Dur process is not the problem
It seems to me the process is fine. The trouble is the action itself. Even if criminal copyright infringement is taking place on a website pointed to with a particular domain name, which seems far-fetched here, seizure of the name seems inappropriate. For starters, the names were not used in the commission of the crime. They certainly do not provide evidence of the crime. And they were not purchased at all, let alone purchased with the proceeds of the crime.
ICE's best argument is that the names were used to infringe. It has been a long time since I researched it, and I frankly do not remember if a gun that is present at the scene, but never displayed or referred to, is "used in the commission of a crime". Domain names seem to me to be in a similar position - they do not actually further the willful infringement. They do not assist in copying, or even in publishing, a copyrighted work. At most they assist in marketing, and then only if they call out the infringed work - generic names, like "StolenMovies.com" or "torrent-finder.com" do little if any work at all.
On the post: Cooks Source 'Apology' Really A Rant Blaming The Woman It Copied For Daring To Tell People
Re: Meh.
Instead of focussing on Griggs' bad writing and attitude, we might point out that this fairly innocent act of infringement shut down a magazine. Copyright destroys progress in the useful arts, it does not ensure it.
On the post: Company Making Cab/Limo Rides More Efficient Ordered To Stop
Re: Re: Defending Taxi cab companies
4. Consistent (but always higher fare/mile) rates.
If there's competition and customers want consistent rates, somebody will choose to compete by keeping their rates consistent. No regulation necessary.
This feels wrong. It assumes rate consistency, transparency, and repeat participation (of consumers) in the marketplace, none of which may be present in a market that largely serves guests to the market.
There are obvious solutions, some of which would almost certainly be implemented, like an option to buy cab service (say on a punch card) before travel after researching rates.
Next >>